Maynes Treatise On Hindu Law And Usage

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N I VERBAL

MAYNE’S

TREATISE’ ON

HINDU LAW AND USAGE

TENTH EDITION

BY

S. SRINIVASA IYENGAR, B a., is.i>

SOMETIME ADVOCATE-GENERAL
OF MADRAS

MADRAS

HIGGINBOTHAMS

1938

[All Rights Reservedi

ASSOCJATfD PRINTLHS, MOUNT ROAD, MADRAS.

PREFACE.

‘Mayne on Hindu Law and Usage’ became, from its first edition, a classic,
and from its third, nearly one of the “sources” of Hindu law; and two
or, as they go in the legal world, three, generations of lawyers
have been brought up on it. But it is sixteen years since the last
edition, and thirty-two years sinc« the seventh edition for which
Mr. Mayne himself was responsible, was published. During this long
interval of time, there have been very considerable accretions to the
body of case-law including a great number of important decisions on
several branches of Hindu law as well as very material changes effected
by legislation from 1914 to 1938, ^Iminating in the enactments of
1937-38. A thorough revision of the work involving substantial alterations
in it has therefore become necessary and the latest enactment has made an
editor’s task one of exceptional diflSculty. While a great part of what
Mr. Mayne wrote has been retained, many parts of the work have been
rewritten and some of the chapters have been recast. Two new chapters
have been added, one on the Hindu Women’s Rights to Property Act and
the other on Impartible Estates. Nearly every topic has received fuller
treatment, space bein^ found either by excision or condensation of parts
of comparatively less necessary matter. I believe all the relevant cases in
the reports up to the end of July 1938 have been incorporated.

As some account of the development of Hindu law was an integral
part of Mr. Mayne’s treatise, a re-examination of the Sanskrit authorities
in the light of later researches and views became also necessary. The
wealth of material made available by such works as the Arthasastra of
Kautilya, the translation of the Acharadhyaya^ of Mitakshara with notes from
the gloss of Balambatta by Mr. Srisa Chandra Vidyarnava, the Manubhashys
of Medhatithi by Dr. Ganganatha Jha, the translations of the Viramitrodaya-
tika and of the Mayukha by Mr. J. R. Gh^rpure, Dr. Jayaswal’s
**Manu and Yajnavalkya”, the very valuable Vedic Index by Drs. Macdonell
and Keith, the 1928 edition of “Law and Custom” of Dr, Jolly whose
services to the history of Hindu law are unique, the OoM^dge History
of India, Mr. P. V. Kane’s indispensable “History offWiarmasastra”,
Dr. Jha’s “Hindu Law in its Sources”, Dr. Ganapati Saslri’s edition of
Visvarupa’s commentary, and the new editions of the **Sinriti ChaQAr|ka,’
enables one to arrive at sounder and more accurate conclusioiMr^tluili were

II

PREFACE.

possible a generation or two ago. As a consequence, views somewhat
different from those of Mr. Mayne have been expressed on some questions,
especially in the first and second chapters as well as in the chapter
on Mairiage and Sonship. On others, however, such i e-examination
has served only to bring fresh support to Mr. Mayne’s conclusions, e.g.,
on propinquity being the sole creterion of Mitakshara succession, the
part played by custom in the Smriti law and the existence of only two
schools of Hindu law.

Care has however been taken to keep the historical and the legal
discussions separate so that the statement of the law may be readily
available. But such passages in the Smritis and the commentaries as are
primary authorities for the ac'tual rules of law have been discussed in
relation to the latter.

Mr. Mayne was perhaps right when he wrote in the seventies of the
last century that .Hindu law was in a state of arrested progress in which
no voices were heard unless thev came from the tomb. But this passage
was retained down to the last edition ( § 40) though it had become quite
clear that Hindu law had shown an amazing adaptability to modern
conditions. In fact there was no department of Hindu law in which
progress was not visible when, after the pandits ceased to be official
referees of courts by Act XI of 1864, Judges had to take upon
themselves the exposition of Hindu law. Distinguished judges, Indian
and European, both in India and on the Privy Council, have, during half a
century, notwithstanding occasional set-backs and cross-currents, helped
to develop Hindu law to suit the new and complex needs of a
highlv progressive society. And the voices of the dead have been quite
as helpful as the voices of the living, as for instance, on the doctrine of
severance in status by unilateral declaration of intention. At the ver>
commencement of the period, five writers, namely, Mr. Mayne himself,
Mr. Mandlik, Sir Gooroodass Banerjee, Dr Sarvadhikari and
Dr. Jolly, by their labours at about the same time, helped to lay the
foundations of modery HinduMaw. Messrs West and Buhler, Dr. Bhatta-
charya, Mr. G. C. Sarkar Sastri, Mr. J. C. Ghose and Mr. P R. Ganapathi
Iyer have also made valuable contributions.

The one astonishing experience of any student of Hindu law who
carefully studies the Commentaries and Digests is the impression he
receives of the remarkable ability and vision of the Hindu jurists, their
grasp of principles and their seminal ideas. Once you get behind their
unfamiliar garb and utterance, you get into contact with acute and
accomplished lawyers who would be a credit to any age or country. And
a juster word was never said than what Mr. Mayne himself said in his

PREFACE.

iir

preface to the first edition: “Hindu law has the oldest -pedigree of any
kno^^n system of jurisprudence, and even now it shows no signs of
decrepitude.”

But it is obvious that the age of the legislator has now come. The
latest of the enactments has struck at the root of the Mitakshara system of
coparcenary and presents in the compass of two sections the concentrated
drawbacks of uncoordinated piecemeal legislation. The difficulties created
by the Act are referred to in Chap. XIV. If the intention of the legislature
was to destroy survivorship altogether, it woul|l have been much simpler
to make the Mitakshara coparcenary a Dayabhaga coparcenary in all
respects. But if the intention was ^to make the widow a coparcener in
the Mitakshara sense, it could easily have been better expressed.

While many parts of Hindu law require reform and legisl ation may
be welcome, it is essential that Hindu law should be in a form readily
accessible to Jthe Indian ministers, pijjliticians, legislators, the Press and
the Public. A codification of the Hindu law of property and succession
is very desirable. In future, the legislatures will be frequently called upon
to consider measures of reform. And any legislation will be most
unsatisfactory if reform is undertaken at one point without envisaging its
consequences throughout the whole field of Hindu law. The time has
certainly come to cheapen the ascertainment of law. to make it, if
only in its broad outline, a common possession of all literate citizens
and to minimise the inconveniences and complications of a personal
law, intermixed as it is with local or family customs which have long
outlived the needs of an earlier day. by the enactment of a code of Hindu
la\v applicable to the whole of Hindu India which is governed by the
two schools.

In this connection the distribution of legislative authority in the
Government of India Act, 1935, so far as personal laws are concerned,
is anomalous and unsatisfactory. Whether the personal law is Hindu or
M^homedan, a reasonable degree of uniformity and certainty is necessary
throughout India and it should not vary flonf province to province or,
it may be, almost from district to district as in Bombay or in the Punjab.
While intestacy and succession, and transfers ^of property are rightly
placed in the concurrent list so that both the Federal and the Provincial
Legislatures have power to legislate on those subjects, the jurisdiction of
the former is excluded as regards agricultural land. Probably all that was
meant by art. 21 of the Provincial legislative list was to leave -the policy of
restricting alienations, as in the Punjab, to the Provincial Legislatures.
But as it stands, especially when read with articles 7 and ^in the Concurrent
List, the net is very much wider. And as almost all land in the provinces

IV

PREFACE.

is agricultural, the Legislatures in the various Provinces alone can legislate
as to intestacy, succession and transfers of property in respect gf it.
Such a procedure involves several and conflicting sets of laws not only
among the various Provinces but also as regards the same Hindu families
in each Province. It is necessary therefore that the Hindu law of propertv
and succession should, like the law of marriage and adoption, be placed
either in the concurrent list or in the federal list, being removed from
the exclusive provincial field.

Appendix III requires a word of explanation. It contains an
adequate statement of jVfarumakkattayam and Aliyasantana law which
Mr. P. Govinda Menon, B.A , B.l , Advocate, has at my request prepared
for this edition. I would express my grateful acknowledgments to him
as also to Mr. B. Sitarama Rao, B.A., b.l.. Government Pleader. Madras,
who revised it.

Apart from its usefulness to practitioners and students as containing
the law and usage of Hindus in some districts of Madras* Appendix III
will enable one to compare the two systems, the one derived
from the patriarchate and the other from the matriarchate. To my mind,
it disproves alike the theory that the matriarchate is the germ which develops
into the patriarchal system and the theory that the joint family system and
succession depend upon the offering of sraddhas. On the other hand it
shows that the sraddhas follow the system of family and succession.

A special debt of thanks and appreciation is due to Messrs. P. P.
Ramabhadra Ayyar, M.A , M.L , and V. Ramaswami Ayyar, B.A., M.L.,
Advocates, for their continuous and unwearied assistance to me in the
preparation of this edition. I must also thank Mr. P. Satyanarayana,
BA., M.L., Advocate; my son, Mr. S. Parthasarathi, B.A., B.L, Advocate; and
Mr. N. D. Varadachari, BA, B L , Advocate, for assistance in connection
with the earlier part of the work as well as Mr. S. K. L. Ratan, B sc., b.l..
Advocate, and Mr. R. Chakravarti, M.A., b.l., for assistance in connection
with the latter part of the work.

17th August^ 1938.

S. SRINIVASA IYENGAR.

PREFACE TO THE FIRST EDITION.

I HWE endeavoured m this work lo show, not only what the Hindu Law is, but how
it came to be what it is. Probably many of my professional readers may think
that the latter part of the enquiry is only a waste of time and trouble, and that, in
pursuing it, I have added to the bulk of the volume without increasing its utility. It
might be sufficient to say that I have aimed at writing a book, which should be
something different from a mere practitioner’s manual.

Hindu Law has the oldest pedigree of any knowd system of jurisprudence, and
even now it shows no signs of decrepitude. At this day it governs races of men,
extending from Cashmere to Cape Comoru^, who agree in nothing else except their
submission to it. No time or trouble can be wasted, which is spent in investigating
the origin and development of such a system, and the causes of its influence. I cannot
but indulge a hope that the very parts of this work, which seem of least value to a
practising lawyer, may be read with interest by some who never intend to enter a
Court. I also hope that the same discussions, which appear to have only an antiquarian
and theoretical interest, may be found of real service, if not to the counsel who has
to win a case, at all events to the judge who has to decide it.

)

The great difficulty which meets a judge is to choose between the conflicting
texts which can be presented to him on almost every question. This difficulty is
constantly increased by the labours of those scholars who are yearly opening up fresh
sources of information. The works which they have made accessible are, naturally,
the works of the very early writers, who had passed into oblivion, because the substance
of their teaching was embodied in more modern treatises. Many of these early texts
are in conflict with each other, and still more are m conflict with the general body of
law as It has been administered in our Courts.

An opinion seems to be growing up that we have been going all wrong; that
we have been mistaken in taking the law from its more recent interpreters, and that
our only safe couise is to re^ert to antiquity, and, wherever it may be necessary, to
correct the Mitakshara or the Daya Bhaga by Manu. Gautama, or Vasishtha. Such a
view omits to notice that some of these aiithois die perhaps two thousand years old,
and that even the East does change, though slowly. The real task of the lawyer is
not to rec' ncile these contradictions, which is impossible, but to account for them.
He will best help a judge who is pressed, for instance, by a text which forbids a
partition, or which makes a father the absolute despot of his family, by showing him
that these texts were once literally true, but that the state of society, in which they
were true, has long since passed away This has been done to a considerable extent
by Dr Mayr m his most valuable work Das Indisrhe Erbrecht, He seems, however,
not to have been acquainted with the writers of the Bengal school, and of course had
no knowledge of the developments which the law ha« received through nearly a
centyry of judicial decisions. I have tried to folio)/ in the course marked out by him,
and by Sir H. S Maine in his well-known writings. iIt*would be presumption to
hope that I have done so with complete, or even with any considerable, success. But
I hope the attempt may lead the way to criticism, which will end in the discovery
of truth.

Another, and completely different current of opinion, is that of those who
think that Hindu Law, as represented in the Sanskrit writings, has little application
to any but Brahmans, or those who accept the ministrations of Brahmans, and that
it has no bearing upon the life of the inferior castes^ and of the non- Aryan races. This
view has been put forward by Mr. Nelson in his “View of the Hindu Law as
administered by the Madras High Court.” In much that he says. I thoroughly agree
with him. I quite agree with him in thinking that rules, founded on the religious
doctrines of Brahmanism, cannot he properly applied to tribes who have never received
those doctrines, merely upon evidence that they are contained in a Sanskrit law book.
But it seems to me that the influence of Brahmanism upon even the Sanskrit writers

VI

PREFACL.

has been greatly exaggerated, and that those parts of the Sanskrit law, which are of
any practical importance, are mainly based upon usage which, in substance, though
not in detail, is common both to Aryan and non-Aryan tribes. Much of the present
work is devoted to the elucidation of this view. I also think that he has under-
estimated the influence which the Sanskrit law has exercised, in moulding to its own
model the somewhat similar usages even of non-Aryan races This influence ’has been
exercised throughout the whole of Southern India during the present century by
means of our Courts and Pundits, by VakiK, and Officials, both judicial and revenue^
almost all of whom, till very lately, were Brahmans

That the Dravidian races have any conscious belief that they arc following tho
Mitakshara, 1 do not at all suppose Noi has an Englishman any conscious belief
that his life is guided by Lord Coke and Lord Mansfield But it is quite possible
that these race« ma> be trying unconsciously to follow the course of life which i--
adopted by the most respect a^ile. the most intellectual, and the best educated among
their neighbours The result would be exactly the same as if they studied the Mitakshara
for themselves That this really is the < a^e is an opinion which I arrived at, after
fifteen years’ aequdintdnee with the litigation of every part of the Madras Presidency.
Even in Malabar I have witnessed continued effoit*' on tln*^ part of the natives to

cast off their own eustoms and to deal with thcui property by partition, alienation, amf

devise, as if it were governed by the ordinary Hindu Law These efforts were eonstantlv
siitctssful in the provincial Courts, but were invariably foiled on appeal to the Suddc*i
('ourl at Madras, the objection being frecjuently taken for the fir'«t time by an English
Barrister It so happened that during the whole time of this silent rc'volt, tlie Sudder
('ourt possessed one* or more judges, v>jho were thoroughly acqiidirfted with Malabar
customs, and by whom eas<*s from that cfistrict were* invariably heard Had the Court
been without such special txpirience. the process would probably have gone on with
such rapidity that, by this time every Malahai fttruad would liave been broken iip-
The revolt would have been a i evolution

A third class of opinion is that of the roniinon-sense Englishman, whose view«^
are very ably represented by Mi (ainningham- now Judge of the Bengal High Com I —
in the preface to his rect nt “Digest of Hindu T^aw” He appeals to look upon the

entire law with a mixture of womier and pitv He is amused at the absurdity of the

rule which forbids an orphan to he adopt< d He is shocked at finding that a man’s
great-grandson is hi*- immediate heir, while the son of that great-giamKon is a very’
remote heir, and his own sister is hardly an heir at all He thinks everything would
lie set right by a short and simple code, which would please everybody, and upon
the meaning of which the judges are not expected to diffei These of course are
questions for the legislator not for the lawyer 1 have attempted to offer matenaK
for the discussion by showing how the rules m question originated, and how ftmch
would have to lie removed if they were altered The age of miracles has parsed, and
I hardly expect to see a code of Hindu f.aw whicli shall satisfy the tiadei and the*
agriculturist, the Punjabi and the Bengali, the pundits of Benares and Kamaiswaiain
of Amritsar and of Poona But I can ea'-ily imagine a very beautiful and specious
code, which should produce much more dis<.aii<-faction and expense than the law a*-* at
present administered

I cannot conclude without expressing my painful consciousness of tin* disadvantage
under which I have labcvired from my ignorance of Sanskrit This has mad^ me
completely dependent on traif^lat^d works A leally satisfactory treatise on Hindu Law
would require its author to he equally lc*amcd as a lawyer and an Orientalist Such a
work could have been produced by Mr Colehiooke, or by the editors of the Bombay
Digest, if the Government jhad not restricted the scope of their labours Hitherto,
unfortunately, those who have possessed the necessary qualifications have wanted either
the inclination or the time The lawyers have not been Orientalists, and the Orientalists
have not been lawyers. For the correction of the many mistakes into which my’
ignorance has led me, I can only most cordially say Exoriare ahquis nostris ex ossibus.
ultor.

Inner Templi.

July 1878,

JOHN D MAYNE

PREFACE TO THE THIRD EDITION.

Since the publication of the last edition of this work, many new materials for the
study of Hindu Law have been placed within the reach of those, who, like myself,
are unable to examine the authorities in their original Sanskrit. Professor Max Muller’s
Series of the Sacred Books of the East has given us translations of the entire texts
of Apastamba, Gautama, and Vishnu, by Dr. Buhler and Dr. Jolly. Mr. Narayan
Mandlik has supplied us with a translation of the whole of Yajnavalkya, and a new
rendering of the Mayukha; while the Sarasvati Vilasa and the Viramitrodaya have been
rendered accessible by the labours of Mr. Foulkes and oftGolapchandra Sarkar.

Judging from an examination of these works, I doubt whether we need expect to
receive much more light upon the existing Hindu Law from the works of the purely
legal writers. They seem to me merely to reproduce with slavish fidelity the same
texts of the ancient writers, and then to criticise them, as if they were algebraic formulas,
without any attempt to show what relation, if any, they have to the actual facts of life.
When, for instance, so modern a work as the Viramitrodaya gravely discusses marriages
between persons of different castes, or the twelve species of sons, it is impossible to
imagine that the author is talking of anything which really existed in his time. Yet
he dilates upon all these distinctions with as much apparent faith in their value, as
would be exhibited by an English lawyer in expounding the peculiarities of a bill of
exchange. From the extracts given by Mr. Narayan Mandlik, I imagine that the
modem writers of Western India are more willing to recognise realities than those of
Bengal and Benares. Probably, much that is useful and interesting might be found
(amid an infinity of rubbish) in the works on ceremonial law. But what we reallv
want is that well-informed natives of India should take a law book in their hands,
and tell us frankly, under each head, how much of the written text is actually recognised
and practised as the rule of every-day life. The great value of Mr. Narayan Mandlik’s
work consists in the extent to which he has adopted this course. His forthcoming
work will be looked for with the greatest interest by every student of Hindu Law.

« « t «

An unusual number of important decisions have been recorded since the
publication of the last edition, and it will be seen that several portions of this work
have been re-written in consequence. The law, as to the liability of a son for his
father’s debts, and as to the father’s power of dealing with family property to liquidate
such debts, seems at last to be settling down into an intelligible, if not a very
satisfactory, shape. The controversies arising out of the text of the Mitakshara defining
stridhanum appear also to be quieted by direct decision, and the conflicting view of
woman’s rights taken by the Bombay High Court has at last been restricted and
defined, and made to rest upon inveterate usage, rather than upon written law. A
single decision of the Privy Council has established the heritable right of female
Sapindas in Bombay, and recognized the all-important principle, that succession under
the Mitakshara law is based upon propinquity, and not upon degrees of religious merit.

JOHN D. MAYNE.

Inner Temple,
January 1883,

[Soon after Mr. Mayne’s death, an appreciation of him from the pen of a retired
judge of the Madras High Court, Mr. Justice Shephard, appeared in May 1917 in
32 M.LJ., 97.1

ABBREVIATIONS

Agra.

A.I.R. All.
A.I.R. Bom.
A.I.R. Cal.
A.I.R. Lah.
A.I.R. Mad.
A.I.R. Nag.
A.I.R. Oudh.
A.I.R. Pat.
A.I.R. P.C.
A.I.R. Pesh.
A.I.R. Rang.
A.I.R. Sind.

Ait, Brah.

All.

A.L.J.

All. E.R.

Apas.

A. C.

Apararka.
Apasfamba
Orih\a Sutras.
Arthas.

Ashburner

A. S. Lit.
Asvalayana.

A.W.N.

A. W.R.
Baden-Powell.

Balambhatti.

B. L.R. or Beng.
L.R.

North-West Provinces High Court, 3 vols. [1866-1868].
All India Reporter, Allahabad.

All India Reporter,^ Bombay.

All India Reporter, Calcutta.

All India Reporter, Lahore.

All India Reporter, Madras.

All India Reporter, Nagpur.

All India Reporter, Oudh.

All India Reporter, Patna.

All India Reporter, ^rivy Council.

All India Reporter, Peshawar.

All India Reporter, Rangoon.

All India Reporter, Sind.

Aiteraya Brahmana.

Indian Law Reports, Allahabad Series [from 1876].
Allahabad Law Journal.

The All England Law Reports, Annotated.

Apastamba, Max Muller’s Sacred Books of the East,
Vol. IL bv Buhler.

English Law Reports, Appeal Cases.

Part translated m 21 M.L.J. Journal.

Sacred Books of the East Series, Vol. XXX.

The Arthasastra of Kautilya (Punjab Sanskrit Series)
edited by Drs. Jolly and Schmidt (1923).

By Dr. T. Ganapati Sastri (Trivandrum Sanskrit
Series, 1920).

Ashburner’s Principles of Equity by Denis Browne, 2nd
edition, 1933. ^ ,

Ancient Sanskrit Literature ty ’Professor Max Muller.
Asvalayana Grihya sutras. Sacred Books of the East
Senes, Vol. XXIX.

Allahabad Weekly Notes.

Allahabad Weekly Reporter.

The Indian Village Community, by B. H. Baden-Powell,
1896.

Commentary on the Mitakshara by Balambhatta, edited
by J. R. Gharpure.

Bengal Law Reports, High Court [1868-1875].

X

ABBREVIATIONS.

B.L.R. (Sup.
VoL).

^A.c.j.

Appx.

F.b.

O.c.j.

P.C.

Baudh.

Bellasis.

Bhattacharya,

H. L.

Bom.

Bom. H.C.

A.c.j.

0 c.j.

Bom L R.

Bom. Sel. Rep.
Bor.

Boul.

Brih.

C A.

Cal.

C.H.I.

C. L J.

CLR.

C W.N.

Ch.

Ch. D.

Cl. & F.

Cole. Pref.

Essays.

D. Bh. or Daya
Bh.

D. Ch. or Dal.
Chand.

Dharmasindhu.

Dig.

D.K.S.

D.M. or Dat.

Mima.

Domat.

Dubois.

Eq.

Bengal Law Reports, Supplemental Volume. Full
Bench Rulings, in 2 parts [1862-1868].

Bengal Law Reports, Appellate Civil Jurisdiction.

„ „ „ Appendix.

„ „ „ Full Bench.

„ „ „ Original Civil Jurisdiction.

., „ „ Privy Council.

Baudhayana, Max Muller’s Sacred Books of ‘the East,
Vol. XIV, by Dr. Buhler
Bombay Suddei Dewany Adawlut Reports.
‘Commentaries on Hindu Law’, by Dr. Jogeiidranath
Bhattacharya, 2nd ed., 1893.

Indian Law Reports, Bombay Senes [from 1876]
Bombay High Couit Reports [1863-1875].

„ .. Appellate Civil Jurisdiction.

Original „ „

Bombay Law Repoiter.

Bombay Select Reports. Sudder Dewany Adawlut.
Borrodaile’s Reports (Bombay Sudder Adawlut), Folio,
1825 [The references in brackets are to the paging
of the edition of 1802 J.

Boulnois, Calcutta Supreme Court [1856-1859].
Brihaspati, translated by Dr. Jolly, Sacred Books ol
the East Series, Vol XXXIH.

Court of Appeal

Indian Law Reports, Calcutta Series [from 1873].

The Cambridge Histoiy of India (six volumes).
Calcutta Law Journal.

Calcutta Law Reporter.

Calcutta Weekly Notes.

English Law Reports, Chancery Appeals.

English Law Reports. Chancery Division.

Clark and Finnelly’s Reports, House of Lords.
Colebrooke’s Prefaces to the Daya Bhaga and the
Digest.

Colebrooke's Essays.

Daya Bhaga, by Jimutavahana (Colebrooke) .

i

Dtitt^ka ^ Chandrika (Sutherland) .

By Kasinath (Bombay edition).

Jaginnatha’s Digest translated by Mr. Colebrooke (1801),
complete in two \olumes. Madras Reprint, 1864.
Daya Krama Sangraha (Wynch),

Dattaka Mimamsa (Sutherland) .

Domat’s Civil Law.

Enlarged edition (1897) of Hindu Manners, Customs,
and Ceremonies, by the Abbe Dubois.

English Law Reports. Equity cases.

ABBREVIATIONS.

XI

E. R.

F. MacN.

Full.

Ganapathi Iyer,
H.L.

Ganapathi Iyer,
Endowments.

Gaut.

Ghose, H.L.
Gib.

Gobhila.

Hals.

Hay.

Hiranyakesin.

H.L.S.

H.S.L.

H.L.

H. L.C.

Hyde.

I. A.

I.A., Sup. Vol.

I.C.

Ind. Wisd.

I. S. Act.
Jayaswal,

M & Y.
Jolly, T.L.L.,
Jolly, L & C.

Kane or H.D.S.

K. B.

Kn.

Lah.

L. J. Ch.

L.J.P.C.

L.T.

Luck.

English Reports.

Sir F. MacNaghten’s Considerations on Hindu Law
[1829].

Fulton’s Reports, Supreme Court, Calcutta [1842-1844].

Hindu Law by P. R. Ganapathi Iyer, Advocate,
Madras, Vol. I (1914).

Hindu and Mahomedan Religious Endowments by
P. R. Ganapathi Iyer, Advocate, Madras, 2nd
edition (1918).

Gautama, Max Muller’s Sacred Books of the East,
Vol. II, by Biihler.

The Principles of Hindu Law’, by Jogendra Chunder
Ghose, 3 volumes. Third edition (1917).

Gibelin. Etudes sur le Droit civil des Hindous [1846].

Gobhila Grihyasutra, S. B. E. Series, Vol. XXX.

Halsbury’s Laws of England, 1st and 2nd editions.

Calcutta High Court, Appellate side, 2 volumes
[1862-1863].

The Grihyasutras of Viiranyakesin, S. B. E. Series, Vol.
XXX.

‘Hindu Law in its Sources’, by Dr. Ganganath Jha,
Vol. I (1930), Vol. II (1933).

‘A History of Sanskrit Literature’, by Dr. A. Berriedale
Keith (1928).

Law Reports, House of Lords.

Clark’s Reports, House of Lords.

Calcutta Reports, High Court, Original side, 2 vols.
[1864-1 865] .

English Law Reports, Indian Appeals [from 1873],

English Law Reports, Indian Appeals, Supplemental
Volume [1872-1873].

The Indian Cases.

Monier Williams’ Indian Wisdom [1875].

The Indian Succession Act, 1925.

Dr. Jayaswal’s Tagore Law Lectures on ‘Manu and
Yajnavalkya’.

Dr. Jolly’s Tagore Law I^ectures on Hindu Law, 1883.

‘Law and Custom’, by Dr Ji;lieis Jolly. Authorised
translation by Bata Krishna Ghosh (1928).

‘History of Dharmasastra’, by P. V. Kane, Advocate,
Bombay, Vol. I (1930).

English Law Reports, King’s 15ench.

Knapp’s Privy Council Cases [1831-1836].

Lahore Series of the Indian Law Reports [from 1920].

Law Journal, Chancery.

Law Journal, Privy Council.

Law Times Reports.

Lucknow Series of the Indian Law Reports.

ABBREVIATIONS.

XU

Macdonell, S.L.
Madanapari j ata.

M.L.J.

M.L.r.

M.L.W.

M.W.N.

Mad.

Mad. Dec.

Mad. H.C.
Madhaviya.

Mad. Jur.
Mad. Man.
Mai. Man.
Maclean.

Mandlik.

Manu.

Mann Bhashya of
Medhatithi.
Manu Smnti.

Marsh.

Maxwell.

Mayr.

Mimamsa Sutras
of Jaimini.
Mer.

Mit.

M. Dig.

M.I.A.

Morton.

Montr.

Morris.

. ‘History of Sanskrit Literature’, by Professor
Macdonell.

Portions translated by S. Sitarama Sastri in 9 M.L.J.
Journal; part by S. S. Setlur, Vol. II, 515-341;
Sanskrit text edited in Calcutta, 1893.

Madras Law Journal.

Madras Law Times.

Madras Law Weekly.

Madras Weekly Notes.

Madras Senes of the Indian Law Reports [from 1876].

Decisions of the Madras Sudder Court. The selected
decisions from 1805-1847 are cited by volumes: the
subsequent reports, by years.

Madras High Court Reports [1862-1876].

Madhava’s Daya Vibhaga (Burnell) [1868], also
edited by S. S. Setlur, Vol. I, 317-354

Madras Jurist, 11 vols. [1866-1876].

Manual of the Madura District, J. H. Nelson, 1868.

Malabar Manuel, by W. Logan, 3 voL. [1887-1891].

Manual of the Administiation of Madras, Vol. I, 1885
by Dr. Maclean.

The Vyavahara Mayukha and Yajnavalkya, Sanskrit
text and translation with Introduction and Appendices,
Bombay (1880), by Rao Saheb V. N. Mandlik.

Translation by Dr. Buhler, Max Muller’s Sacred Books
of the East, Vol. XXV

Translated by Dr. Ganganath Jha (Calcutta University
Series, 1920) ,

With six commentaries, edited by V. N. Mandlik
(1886) , Kulluka’s commentary, Bombay edition.

Marshall’s Cases on Appeal to the High Court of
Bengal [1864].

‘On the Interpretation of Statutes’, by Sir P. B. Maxwell,
7th edition, 1929.

Das Indische Erbrecht [1873].

By Dr. Ganganath Jha, Sacred Books of the Hindus
Series, 1916.

Merivale’s Chancery Reports.

Mitakshar^ by Vijnanesvara Yogi; Sanskrit text
published by Moghe Sastri (1882) ; and with the
commentaries of Subodhini and Balambhatti by
S.‘S. Setlur (1912).

Morley’s Digest, 2 vols., Calcutta [1850].

Moore’s Indian Appeals [1836-1872].

Decisions ,of late Supreme Court, Calcutta, 1 vol.
[1774-1848].

Montriou’s Hindu Law Cases, Calcutta Supreme
Court [1780-1801].

Bombay Sudder Adawlut Reports.

ABBREVIATIONS.

XIII

M & S.

Muirhead.

Mysore.

Mys. H.C.R.
Mys. L.J.
Nar.

Naraharayya.

N.C.

Nelson’s View.

Scienti-
fic Study.
Nirnayasindhu.

N.L.J.

N.L.R.

N. -W.P.

O. W.N.

P. or Prob.

P. and D.
Parasara

Madhaviyam.

Paraskara.

Pat. «

P.L.T.

P.L.R.

P.C.

Pat. L.J. or P.L.J.
P.L.W.

P.R.

P.W.N.

Perry, O.C.

Punjab Customs.

Punjab Cus-
tomary Law.
Q.B.D.

Raghunandana.

‘Marriage and Stridhana’, by Sir Cooroodass Banerjee,
Tagore Law Lectures for 1878, 5th edition, 1925.

‘Historical Introduction to the Private Law of Rome’,
by J. Muirhead, 3rd edition, 1916.

Mysore Law Reports [1878-1895].

Mysore High Court Reports.

Mysore Law Journal.

Narada, cited from translation by Jolly [London 1876].
Sacred Books of the East, Vol. XXXIII.

The Piayaschittadhyaya in the Mitakshara translated
by S. N. Naraharayya, Sacred Laws of the Aryans
Series, 1913.

Sir Thomas Strange’s Notes of Cases, Madras [1816].

View of the Hindu Law as administered by High Court
of Madras, Nelson, Madras [1877].

A Prospectus of the Scientific Study of the Hindu Law,
Nelson, Madras [1881].

Of Kamalakara. Sanskrit text ( Bombay edition ) ; part
translated by S. S.^Setlur, Vol. 11.^559-568.

Nagpur Law Journal.

Nagpur Law Reports.

Decisions of the High Court of the N.-W. Provinces,
Allahabad [1869-1875].

Oudh Weekly Notes.

English Law Reports, Probate Division.

„ „ „ Probate and Divorce Division.

Part translated in 1 M.L.J. Journal; Sanskrit text
published in Bombay Sanskrit Series (1893).

Paraskara Crihyasutras, Sacred Books of the East
Series, Vol. XXIX.

Patna Series of the Indian Law Reports (from 1922).

Patna Law Times.

Punjab Law Reporter.

Privy Council.

Patna Law Journal, Indian Law Reports [from 1916].

Patna Law Weekly.

Punjab Record.

Patna Weekly Notes.

Sir Erskine Perry’s Oriental Cases, Bombay Supreme
Court [1853].

Notes on Customary Law as administered in the Courts
of the Punjab, Boulnois and Rattigan, 1876.

Three Volumes, edited by C. L. Tupper, C. S., Calcutta
[1881].

English Law Reports, Queen’s Bench Division.

The Daya Tattva of Raghunandana, translated by Golap
Chandra Sarkar Sastri, Calcutta, 1874; also printed
in Setlur, Vol. II, 469-514.

XIV

ABBREVIATIONS.

Raghunandana.

Samskara

Mayukha.

Sankararama

Sastri.

Sankhayana.

Sarasvati Vilasa.

Saraswati, P. N.

Sarkar, G. C.

Sarkar, Adop-
tion.

Sarvadhikari.

Rang.

Sarkar, K. L.,
‘Mimamsa’.

Satap. Brah.

S.B.E.

S.D.

Sen, P.N.,
Setliir.

Sev.

Author of Udhvahatattva.

Of Nilakantha Bhatta. Text edited by J. R. Gharpure
(1927).

‘Fictions in the development of Hindu Law Texts’, by
C. Sankararama Sastri, Advocate, Madras (1926).

Sankhayana Grihyasutra, Sacred Books of the East
Series, Vol. XXIX.

Translation by Rev. T. Foulkes (1881) ; also* edited bv
S. S. Setlur, Vol. I, 119-211.

‘The Hindu Law of Endowments’, by Pandit Pran Nath
Saraswati (1897) (Tagore Law Lectures for 1892).

Hindli Law by Golap Chandra Sarkar Sastri, 7th edition
(1933).

Tagore Law Ldctures on Adoption by Golap Chandra
Saikar Sastri, 2nd edition, 1916.

Dr. Rajkumar Sarvadhikari’s Tagore Law Lectures,
(1880); first edition, 1882, second edition, 1922.

Rangoon Scries of the Indian Law Reports (from
1923).

‘The Mimaimu Rules of Interpretation as applied to
Hindu Law’ by Kisori Lai Sarkar, Tagore Law
Lectures for 1905.

The Satapatha Brahmana, Sacred Books of the East
Series, Volumes XII, XXVI, XLI, XLIII and XLIV.

Sacred Books of the East Series, edited by Prof. Max
Muller.

Decisions of the Bengal Sudder Court. The selected
decisions from 1791-1848 are cited by volumes, with
a double paging, which refers to the original edition,
and to that subsequently published in Calcutta The
subsequent reports are referred to by years.

‘Hindu Jurisprudence’, by P. N. Sen, Tagore Law
Lectures for 1909, first edition, 1918.

‘Collection of Texts on Inheritance’. Vol. I, MitaK-
shara, 1-61; Vyavahara Mayukha, 62-118; Sarasvati
Vilasa 119-211; Smritichandiika, 212-316; Vyava-
hara Madhaviyam, 317-354; Dattaka Mimamsa,
355-422; Dattaka Chandrika, 123-449. Vol. II,
Dayabfiaga, 1-108; Dayakramasangraha, 109-158;
t'lvada Ratnakara, 159-242; Vivada Chintamani,
243-274; Viramitrodaya, 275-468; Dayatattva, 469-
,J314; Madanaparijata, 515-541, 569; Vaidyanatha
Dikshitiyam, 544-550, 571-575; Parasara Madhaviyam,
550-557; Dharmasindhu, 588; Nirnayasindhu, 559-
568; Samskara Kaustuba, 568-569.

Cases oh appeal to High Court of Bengal in continu-
ation of Marshall, by Sevestre [1869],

Translation of Kautilya’s Arthasastra, 2nd edition
(1923).

Shamasastri,

ABBREVIATIONS.

XV

Smritichandrika.

Sorg H.J..

Co. Con.

Steele.

Stokes, H.L.B.

Stra. H.L.

Stra. Man.

Suth. Syn.

Theobald.

Thesawaleme.

Thurston, E.

T. P. Act.
Trevelyan.
, Minors,

Vaidyanatha

Dikshitiyam.

Varadaraja.

Vas.

V. Chand. or
Vyav. Chand.
V. Darp. or
Vyav. Darp.
Vedfc Index.

Ves.

Ves. Sen.
Vidyarnava.

Vill. Com.
Viramit.

Smriti Chandrika (translated by KristnasaWmy Iyer),
Madras [1867].

Sanskrit text edited by Mr. Gharpure;* also by the
Mysore Government Oriental Library Series (1914).

Treatise on Hindu Law applicable to the French
establishments in India, by Leon Sorg, Chief Justice
of the Court of First Instance in Pondicherry, 1897.

Opinions of the Consultative Committee of Indian
Juiisprudence at Pondicherry.

‘Law of Castes and Tribes in the Dekhan’, by Steele.

Stokes’ Hindu Law Books containing translations of
Vyavahara Mayukha, by Borrodaile;Daya Bhagwa and
Mitakshara, by ColebrookJ; Daya Krama Sangraha
by Wynch; Dattaka Mimamsa, and Dattaka

Chandrika by Sutherland [Madras, 1865].

Sir Thomas Strange’s Hindu Law [1830]; 4th edition,
1864; 5th edition, 1875.

Mr. T. L. Strange’s Manual of Hindu Law, 1863.

Mr. Sutherland’s Synopsis of the Law of Adoption.
Stokes’ Hindu Law Books, Madras, 1865.

‘A Concise TreatiSe on the Law of Wills’, by
H. S. Theobald.

The Thesawaleme; or. Laws and Customs of Jaffna.
(H. F. Mutukisna), 1862.

‘Castes and Tribes in Southern India’, by E. Thurston
(7 volumes).

The Transfer of Property Act, 1882.

Hindu Law by Sir E. J. Trevelyan, 3rd edition, 1929.

‘The Law relating to Minors’, by Sir E. J. Trevelyan,
6th edition, 1926.

Grantha edition; Kumbakonam, part translated in 6
M.L.J. Journal.

Varadaraja’s Vyavahara Nirnaya (Burnell), 1872.

Vasishtha, by Dr. Buhler, Max Muller’s Sacred Books
of the East, Vol. XIV.

Vyavastha Chandrika, by Shyama Charan Sarkar, 2
volumes, 1878.

Vyavastha Darpana, by Shyama Charan Sarkar, 2
volumes, 1883.

‘Vedic Index of Names^ and Subjects’, by Professor
Macdonell and Dr. Keilh, \wo volumes (1912).

Vesey’s (Junior) Reports, Chancery [1789-1817].

Vesey’s (Senior) Reports, Chancery, tempore. Lord
Hardwicke [1746-1755],

The Acharadhyaya of the Mitakshara, translated by
Rai Bahadur Srisa Chandra Vidyarnava, Sacred
Books of the Hindus Series (1918).

Maine’s Village Communities [1871].

The Law of Inheritance as in the Viramitrodaya of
Mitra Misra by Golap Chandra Sarkar Sastri,
Calcutta, 1879; also reprinted in Setlur, II, 274-468.

XVI

ABBREVIATIONS.

Viramitrodaya-
tika of Mitra
Misra.
Visvarupa.

Vishnu.

Viv. Chint.

Vivada Ratna-
kara.

V. May.

W & B.

Wharton.

Wilson.

W.R.

W. R. Misc.
W.R, P.C.
W.R., Sp.No.

W. MacN.
Wigram.

Wym.

Yajn.

On the Smriti of ' Yajnavalkya. Translation by Mr.
J. R. Gharpure

Commentary called ‘Bala Krida’ on Yajnavalkya by;
translated by S Sitarama Sastri, Madras, 1900,
Sanskrit text published in the Trivandrum Sanskrit
Series, b\ Dr. T. Ganapati Sastri (1922).

Vishnu tianslated b\ Jolly, Max Muller’s Sacred Books
of the East, Vol VII.

Vivada Chintamani. by Vachaspati Misra. (Prosonno
Cooniar Tagoie), 1865, Setlur, Vol. II, 213-274.

Of Chandes\ara. Translation by Golap Chandra
Sarkar Sastri (1899) ; also edited in Setlui. Vol II,
159-242.

Vyavahaia Mayukha, translated by Borrodaile. by
V IN Mandlik, also by J R. Gharpure (1921) , also
m Setiui, Vol I, 62-118

West and Buhlci’s Digest, Bombay, 4th ed , 1921.

Law Lexicon by Wharton, Eleventh edition, 1911.

‘Glossal y of Judicial and Revenue te'nis’. by H. H.
Wilson, 1855.

Suthei land's Weeklv Repoiter (1864-1877).

Weekly Reportei Miscellaneous Appeals.

Weekly Reporter Privy Council Rulings.

Weekly Reporter Special Number. Full Bench
Rulings, July 1862 to July 1864.

W. MacNaghten’s Hindu Law, 1829.

A Commentaiv on Malabar Law and Custom, by
Herbeit Wigiam, M C S., 1882.

Wyman’s Civil and Criminal Reports, Calcutta

Yajnavalkya. cited from translation, by V. N. Mandlik.

TABLE OF CONTENTS

Table of ’Cases

PACE.
... XXIII

[The References are to paragtaphs,\

Ch\p I. THE NATURE AND ORIGIN OF HINDU LAW . . 1

•

Basis of Smntis and their j»ractical nature, 1-5 A. Dharma and
positive law, 6. Arthasastra of Kautilya, 7-8. Ancient tribunals, eighteen
titles and souices of law, 9. Religious influence, 10. Present scope
of Hindu law,* 11.

Chap. II. THE SOURCES OF HINDU LAW . 19

The Smntis, 12-18. Principles of exposition, 19. Mimamsa rules,
20-21. Commentaries and Digests, and their authority, 22-31. The two
schools of law, 32.

Chap. HI. THE SOURCES OF HINDU LAW . . 64

Custom, 33-41. Enactments modifying Hindu law, 42-50. Rules of
lustice and equity, 51. Application of Hindu law, 52-55 School of the
domicil and change of personal law, 56-57. Effect of conversion to

Mohammedanism, 58-60, to Christianity, 61.

CU4P* IV. , MARRIAGE AND SONSHIP . . 105

Aryan mairiage, 62-65. Desiie for aurasa son, 66. Secondary sons,
67-81. Aurasa and adopted sons alone now recognised, 82-83. Eight
forms of marriage, 84-88 \pproved and unapproved marriages,

89, 94. Brahma marriage. 90-91. Gandharva marriage, 92-95.
Asura marriage, 96-99. Marriage, a samskara, 100 Betrothal.

101. Guardianship in marriage, 102-lOil. Capacity to marry,
104-105. Prohibited degrees, 106 Definition of Wapyicra\ 107-109. Limit
of sagotra-sapinda relation, 110. Limit of handhu relation, 111-116.
Prohibited degrees m Bengal. 117 Special usages, 118. Gotra
prohibition, 119. Marriage ceremonies. 120. Factum Valet, 121.
Presumption of valid marriage 122. Inteicaste marriages, 123-128.
Polygamy, 129. Monogamy by statute, 130. Widow lemarriage, 131-132.
Marital duties, 133-134 Marriage expenses, 135.

Chap. V. ADOPTION 192

Evolution of adoption, 136-138. Motives for adoption, 139. Texts
on adoption, 140. Who may adopt. 141-146. Agreement not to adopt,

147. Husband’s authority, 148-151. Sapindas’ consent, 152-160. Widow’s

XVIII

CONTENTS

PAGE.

power in Western India, 161 Prohibition 162-163 Widow’s motives,

164 Successive adoptions, 165 Termination of widow’s power, 166-171
Who may give in adoption, 172 Who may he taken in adoption. 173-181
The ceremonies necessary to an adoption, 182-185 Factum lalet, 186
Results of adoption, 187-201 Restrictions on adopted son’s rights,
203*205. When adopted son’s rights commence, 206-207 Divyamushya-
yana, 208-211. Adoption of an orphan, 212. Invalid adoptions, 213-216
Evidence of adoption, 217 Res judicata, 218 Estoppel, 219

Limitation, 220-221 Woman cannot adopt to herself, 222 Kritrima

adoption, 223-227 Illatom adoption 228

Chm> VI. MINORITY AND GUARDIANSHIP (229-241) 297

Chap. VII EARLY LAW OF PROPERTY (242-262) 317

Chap VIII. THE JOINT FAMILY . 337

Its constitution and principles, 263-265 Shares ascertained on

partition, 265 -a Limits ot C|' pari enary, 266-268 Ohitructed and

unobstructed heritage. 269 Sons' right by birth in father’s property,
271-273. Ancestral propert\ 275-280 Property jointly acquired,

281 282 Property thrown into rommnn stock, 283 Separate property,

284 292 Presumption and onus 293-295 Dayabhaga joint family,
296-297 Enjoyment of family pioperty, 298 Rights and liabilities of
manager, 299 Karta undei Dayabhaga, 300 Manager represents family,

301. Suits by one co-sharer 302 Right to joint possession, 303 Trading
families. 304-307 Partnership with strangers. 308 Manager’s powers,
308 -a. Infant member, 309 Simdrv powers of manager, 310-311

Chap IX LIABILITY FOR DEBTS 405

Three sources of liability 312 Origin and development, 313-314
Avyavahanka debts, 315-320 Debt need not be beneficial, 321 ^ Liability
of male issue not personal, but confined to assets, 322 Assets include
joint estate, 323. Pious obligation of male issue, 324-341 Obligation
arising from possession of assets 342-343 Debts not a charge upon
coparcener’s share passing by survivorship, 344*346 Cases of agency,
347-348. Liability for debts under promissory notes, 349. Insolvency,
350-350-B.

Chap. X. ALIENATIONS 459

Division of sul\iect, 351 Alienation of separate property, 352.
Father’s power under Dayabhaga. 353 Coparcener’s power under
Dayabhaga, 354 Father’s power under Mitakshara, 355-357.
Manager’s powers, 358-360 Hunoonianpersaud’s case and its applica-
tion, 361-37,5 Consent of coparceners, 376-^17 Coparcener’s right to
alienate his share, 372-382. Renunciation, 383 Rights of purchasers,
384-395. Remedies against alienation. 396 Limitation, 397 Who can
object, 389-400 Equities on setting aside. 401-403, 406-407 Alienation
without necessity void or voidable. 404-405 Agreement against
alienation, 408. Sales and mortgages, 409-410.

CONTENTS.

XIX

PAGE.

Chap^. XI. PARTITION ... ... 522

Division of subject, 411. What property is divisible, 412; and
indivisible 413 414. Property available for division, 415-417. Persons
entitled to share, 418-442. Agreement not to partition, 443. Will
prohibiting or postponing partition, 444. What constitutes partition,
445-455. Minor’s suit for partition, 452. Renunciation of share, 454.
Mode of division, 456-457. Partial partition, 458. Suit for partition by
coparcener, 459-463; by stranger, 464. Partition Act, 465. Reopening
of partition, 466. Reunion, 467-470.

Ch\p. XII. SUCCESSION UNDER MITAKS^ARA LAW 582

%

Section I. — Principles of Succession.

Ruless in the Smritis, terminology for heirs and history, 471-479.

Two systems of inheritance, 480. Yajnavalkya’s text and its import, 481.
Male heir, stock of descent, 482. Right of representation, 483.
Succession never in abeyance, 484. Propinquity the criterion of heirship
according ton the Smritis and commentaries, 485-492. Preference of full
blood to half-blood, 493. Rights of wbmen, 494-512-a. Three divisions
of heirs and Sapindas, 513. Samanodakas, 514. Bandhus, 515-516. Rule
of mutuality and heritability, 517-519, 524. Three classes of bandhus and
their limits, 520-523

Section II. — Order in Succession.

Male issue, 525-526. Illegitimate sons, 527-529. Widow, 530-533.
Daughter, 534-535. Daughter’s son, 536-537. Parents, 538-539. Brothers,

540. Nephews, 541. Succession after nephews, 542-545. Samanodakas,

546. Bandhus and rules regulating their order of succession, 547-552.
Female bandhus, 553. Bombay law, 554-557. Reunion, 558. Ultimate
heirs 559-560. Special rules, 561-564.

Table A. — Sagotras (Sapindas and Samanodakas in Mitakshara

Law) ... ...628-a

Table B. —Bandhus in Mitakshara Law . . . end

Chap. XIII. SUCCESSION UNDER DAYABHAGA LAW 693

•

Principles of succession, 565-573- \. Order of* succession, male issue,

574. Widow, 575. Daughter, 576. Daughter’s son, 577. Parents, 578.
Brother, 579. Nephew and grand-nephew, 580. Other sapindas and
bandhus ex parte paterna 581-583. Bandhus ex Parte materna, 584-585.
Sakulyas and samanodakas, 586. Succession to a reunited coparcener,

587.

Table C. — Sapindas Including Bandhus (Dayabhaga Law) 700-a

Chap. XIV. THE HINDU WOMEN’S RIGHTS TO PROPERTY

ACT (588-593) ... 714

XX

CONTENTS.

PAGE.

Chap XV. EXCLUSION FROM INHERITANCE (594-606) 724

Ch^p XVI STRIDHANA 734

Smriti texts relating to stridliana 607-611 What is stridhana,
612-616 Power of disposal over stridliana, 617-619 Succession, 620, to
maiden’s piopeity, 621 Succession under Mitakshara, 622-625, 'under
Mayukha, 626-627, under Dayabhaga, 628-632 Succession to degraded
women, 633 Succession to dancing girls, 634

Chap XVII WOMAN'S' ESTATE 765

Its features, 635 In Honil)ay4 636 A widow's powei of disposal
and enjoyment, 638-639 Hei inleiest in accumulations, 610-641 Her
powers of alienation, 642-658 (’onsent of riwersioners to widow’s
alienation, 659-662 Surrendei 663-666 Kstoppid of reversione*. 667-668
Widow’s powers of (omproniiso 669 Widow lepiesents Irt husband's
estate, 670 Decrees against limited ownei 671-672 Liinilation, 673
Persons entitled to sue 674-676 Foi what tht‘y may sue, 6 77-679-a
Ectiiities on setting aside alieiiatiolTs of heiress, 680

Chap XVIII MAINTENANCE 821

Persons entitled to maintenance 681 Illegitimate sons, 682 Con-
cubine, 683 Aged parents and minor son, 684 Adult sons, 685
Daughter, 686 Wife, 687-688 Widow's right, 689-694 Quantum
of maintenance. 695-696 A i reals, 697 How far a chaige, 698-701
Priority of debts, 702 Widow's claim on family IiousCa 703 Right cannot
be transferred 704 Maintenann* tan be madt a charge, 705

Chap XIX IMPARTIBLE ESTATES 844

General 706 Incidents 707 708 Holdei's right of alienationt

709 Madras Impartible Estates Act 709-a Income is separate jltoperty,

710 Accretions, 711 Succession, 712-720 Rights of junior members to
maintenance, 721-721-a

Chap. XX GIFTS 863

Early law, 722 Propeitj that may be given, 723 Definition and
formalities, 724-726 •Dqnat{o mortis causa, 727. Who mav be donee, 728*
Imperfect gifts, 729 Gift to unborn persons, 730-731 Gift of annuity,

732 Estate repugnant to Hindu law invalid 733 Vesting, 734 Revoca-
tion of gifts, 735. I)jo presumption of joint tenancy, 736 Trusts,
736-\.736-b

Chap. XXL WILLS 876

Origin and growth, 737-741. Legislation, 742-743 Definition and
extent of testamentary power, 744-751 Recent statutes abrogating rule
in Tagore case, 752-753. Rule against perpetuity inapplicable to chanties,

754. Estates repugnant to general law void, 756 Limited estates valid,

757. Executory bequests, 758 Gift over, 759-760 Bequest upon impos-

CONTENTS.

XXI

PAGE

sib^e condition, 760-a. Cesser of interest, 761. Accumulations, 762. Power
of appointment conferred by will, 763 Vesting of legacies, 764.
Restrictions on absolute estate invalid, 765. Presumption of tenancy in
comnlon, 766. Gift of income, 767. Tying up of property, 768. Bequest
by implication, 769. Persona designata, 770. Rules of construction,
771-775 Presumption against intestacy. 776. English rules inapplicable,

777. Vesting in executor, 778. Probate, 779. Executor’s powers, 780.

Chap. XXII. RELIGIOUS AND CHARITABLE ENDOWMENTS . . 913

Ishta and purta^ 781 ‘Chanty’ in Englisl^ law, 782. Public and
private endowments, 783 Real and nominal, 784. Religious endow-
ments, 785. Maths, 786. Charitable endowments, 787. Bequest to
‘dharma’ void for uncertainty, 788-789. Dedication how effected, 790-791.
Absolute and partial dedication, 792. Proof of dedication, 793. Idol, a
juridical person, 794. Female manager, 795 Position of shebait,
manager or dharmakarta and their powers, 796-800. Position of the head
of a math, 801. Limitation for suits, 802. Setting aside alienations, 803.
Burden of proof, 804. Creditor’s remedies for unsecured loans, 805.
Decrees against manager, 806. Devolution of mahant's office, 807; of
managership, 808. Alienation of trusteeship or religious office invalid,
809-810. Founder’s rights, 811. cy 812 Jurisdiction of courts, 813.
Legislation, 814.

Chap. XXIII. BENAMI TRANSACTIONS . . . . 949

Common practice, 815. Principles of benami, 816-820. Effect given
to real title, 821; unless statute violated, 822, or third parties defrauded,

823. Fraud on creditors, 824. Right of benamidar to sue, 825.

Appendix. I. Section A. THE SAMSKARAS IN THE SMRITIS ... 959

Section B. ORDER IN OBSEQUIES ... ... 960

Appendix. II. MALE BANDHUS IN ORDER OF SUCCESSION

ACCORDING TO THE MITAKSHARA LAW ... 963

Appendix. III. MARUMAKKATTAYAxM AND ALIYASANTANA LAW %7

INDEX

... 991

TABLE OF CASES

A

A & B, In re, 153, 304.

Abadi V, Asa, 838

Abaji Gangadhar v. Miikta, 865.

Abani Bilas v. Kanti Chundra, 422.

Abbot V Middleton, 905, 907
Abbu V, Kuppammal, 286, 905.

Abdul Aziz V Appayaswami, 425, 430, 431,

499, 855

— — V Nirma, 656

— Cadur v. Turner, 100.

— Hussein v Bibi Sono, 70, 76.

— Ilye V Mir Mahomed, 444, 953
— Jalilkhan v Obaidulla, 954
Kadar v Shridhai, 361.

— Kareem v Badruddeen, 571
— Karim v Ram Kishore, 419, 432
— Majid Khan v Saraswati, 400, 450,

452.

— ■ Rahman v. Ghulam Muhammad, 955.
— Rahman v Jagannath, 304.

— Sae V Sundara Mudaliar, 423
— Wahab v Tilakdhari Lai, 557.
Abdulla V. Ram Lall, 793, 794
Abdulla Koya v Eacharan Nair, 978, 986.
Abdur Rdhim v Barkat Ah, 946
Abdur Rahim v, Halimabhai, 96, 99, 101.
Abdurreheman v. Hussein Kunhi, 973, 981
Abhachari v Ramachandrayya, 286
Ahhai riiiirn Janav v Mangal, 577, 579,
581, 712, 713

Abhasi Begum v Rajroop Koonwar, 302
Abhay Chandra v Pyari, 381, 383, 384, 527.
Abhiram Goswami v. Shyama Charan, 473,
925, 931, 934.

Abildkh Bhagat v Bhekhi Mahto, 308, 553,

730

Abinash v Harmath, 813.

Abinash Chandra v Narahari, 811.
Abodhyapada v Ram Kinkar, 799
Abraham v Abraham, 75, 78, 95, 98, 102,

103, 551

Abu Mahomad Barkat Ah v. Saraswati

Dasi, 839.

Abuvakkar v, Kunhi Kuttiyali, 973
Achal Ram v. Kazim, 287, 288.

Achratlal Jekisandas v Chimanlal, 303.
Achutan Nair v, Chenotti, 883.

Achutanand v. Surajnarain, 421, 479.
Achutaramayya v. Ratnajee, 395, 409, 411.
Achut Sitaram v. Shivaji Rao, 503.
Adaikalam Chetty v, Marimuthu, 389.

— — V. Subban, 387, 389.

Adambhai v. Alla Rakhia, 101.

Adam Haji v» P. Kunhan, 971, 987.

Adhar Chandra v. Nobin Chandra, 356
Adhiranee v. Shonamalee, 837, 840, 841.
Adibai v Cursandas, 829, 833.

Adi Deo V Dukharan, 559, 813.

Adikesavan v Gurunatha, 481.

* Adinarayana v. Venkata, 386, 404
‘ Adit Narain v Mahabir Prasad, 160, 161’,
630, 631, 632, 635, 637, 638, 643, 673„
675.

Aditram v Bapulal, 882.

Adiveppa v. Tontappa, 799.

' Adivi Suryaprakasa v Nidamarty Ganga-
raju, 234, 235, 269, 273.
Adioodhia v Kashee Gir, 355, 460.

! \timr General v Anandachari, 173
I — V Balkissen Missir, 900, 927.

' — i;. Hughes, 891, 892, 904

, Bengal v Lai Behan Dhar,

I 893

I Adnshappa r. Gurshidappa, 845.

Adurmoni v Chowdhry, 356, 429
, Adusumilh Knstnayya v Adusumilh, 220,
221, 223, 225, 230

Advi-bin-Fakirappa v Fakirappa, 250.

' Advocate-General v. Jimbabai, 100.

— V Strangman, 918.

Adv>appd V Rudrdva, 627, 659, 727.
Afiram Bibi v Narimtulla, 949, 958.

I A G. New Zealand v. New Zealand Insur-
, ance Co., 921.

Aga Hajee v Juggut, 416.

Aghore Nath v. Gnsh Ch under, 449.
'\hmdd V Manha Mammad, 987.

Ahmad Khan v Channi Bibi, 68, 71.
Ahmedbhoy v Cassumbhoy, 100, 374
— V Sir Dinsha M. Petit, 357.
Ahobilachari v Thulasi, 362
Aisha Peebee v Noor Mohammad, 101.

Aiti Kocheni v. Aidew Kochuni, 113.

I Aiyasami v Appasami, 884.

I Aiyavier v, Subramania Iyer, 558
1 Aiyyagari v Aiyyagari, 348, 493, 498, 499,
501, 505, 506, 528, 722.
Ajab Singh v, Nanabhau, 288.

Ajit Kumar Mitra v Tarubala Dassee, 891.
Ajit Singh V Bijai Bahadur, 514.

Ajodhia V. Data Ram, 438.

Ajodhya Pershad v, Mahadeo Pershad, 573.
Ajudhia Baksh v. Mt. Rukmin Kuar, 891.

— — V, Ram Sumer, 631.

Akamma r. Puttaiya, 301.
j Akbarally v. Mahomedally, 71.

I Akhil Prodhan v. Manmatha Nath, 957.

XXIV

TABLE OF CASES.

Akhoychuncler v Kalapahar Haji, 58, 202,

218

Akkamma v Rangaraia, 563
V Venkay>a, 363, 774
Akkawa v Sayad Khan 803, 805
Akora v Boreani, 6S6
Ak-^haya (dianclra v Haridas, 577, 694,

707. 712

Ak^hay Kumar v Bhajagohinda, 390 i

Alagappa 7’ Mangathai, 300 ,

— ■ V Ramasamy, 319 j

— V Sivaramasundara, 918, 943 I

— V Wllian, 386 !

Alamelu v Balu, 555, 660 j

— V Rt'iiga'-'ami, 506 |

Alami 7 Kumu, 883, 974 1

Alam Khan v Karu|)pantiasami, 935 911 j
Alangainonjori 7 Souamoni 887, 888, 892 ,

Alank Manjari v Fakir Chand, 210, 253 '

Alasinga v Venkata Sudai^^ana, 911, 912
Alavandar 7’ Dhanakoti, 361
Alhredit v Batin Jellamnia, 300, 303 305 j
Ahhhai V Dada, 871 j

Alice Skinner In re, 911 ,

All Foon V Huehai Pat 414 |

Ah Ha'^an v Dhiria, 520, 871 '

Alimelaminal v Aruna( halain, 300, 302 .

316 510

Alkhii Rain 7’ Raman Lai 881 1

Alladinet v Sreenath, 391 '

Allahabad Bank 7’ Rhagwan & Co, 451 j
Allun Venkatapathi v Danliihiri Venkata- I
narasimha, 466, 496, 497, 557, 558,
559, 565, 568 I

Alodhan Knar 7’ Naurangi Singh, 516, 819
Alum 7’ Ashad, 388 i

Amar C’handra r Saradamoyee, 276, 482 ,

— — V Sehak Chandra, 436 |

Amardaval v liar Pershad, 444, 491 [

Amarendrn s (ase, Amarendra v Sanalan, i
25, 124, 199 203, 205, 207, 224, 232, i
235, 236, 237, 238, 239, 268, 270, 723 j
Amarendra v Monimunjari, 868 j

Amarjit v Algu, 756 '

Amarnath v Curanditta, 357 1

Amar Singh v Bhagwandas, 506 |

Amava Mahadgaiida, 198, 217, 266, 269 |

Ambahai v Govmd, 88, 96
Ambalal v Bihar Ho'^iery Mills 396, 397, i

415 I

— Hargovind v Ambalal Shi vial, 894, i

897 '

Ambalavana v Gown, 301, 403, 478, 488 '

Ambalika Da^i v Aparna Dasi, 70
Ambawow v Rullon, 617
Ambika v Sukhmani, 557
Ambikaprasad v Chandramoni, 796 1

Ambn Nair v Ulha Amma, 969, 981 '

Amena v Rad hab inode, 689 !

Amina Khatiin 7 ; Khaliliir Rahman, 75 !

Amirdham v Valhammai, 360
Amir Singh v Moaz/im, 388
Amirlhabnga Thevan, In the matter of,

510, 516

Amirtliavalh v Sironmani, 300
Aminiddaiila v Nateii, 871
Arnjad All v Moniram, 788 •

Ammakannu v Appu, 824, 825, 829
Ammahi v Naravana, 986
Ammalukiilti v Ramiinni, 984, 985, 986
Ammani Amma v Padmanabha, 984
— Ammal 7’ Periasami, 654
Ammanna v Satvanarayana, 225
Amolak Ram v ('hand an, 499, 506
Amrej v Shambii, 470, 475, 481, 788
Amiifakiimaii 7’ Lakhi Naravan, 630, 631,
636 694, 696

Amritalal v Manik Lai, 545, 838
Amrit Naravan v (Liva Singh, 797, 809
Amiito Lai 7’ Surnornoyi, 210, 899
Amrit Rao v Mukiinda Rao, 559
Am rut 7’ Thagan, 669
\miil\a 7’ Kalidas 886, 904
Anand 7’ Piankisto 55 1
Ananda Bai v Raiaram, 769
Ananda Bibi 7' Nownit Lai, 57, 617, 644
Ananda Charan 7 Iliatee Charan, 403
Ananda Rao 7’ Appa Rao, 314

7 Venkatasubba Rao, 191
Ananda>yan 7 Devaraiavvan 319
\nandi Bai r llari Suba, 572, 665
— V Kashi Bai, 271, 273
— ■ Devi V Mohan Lai, 866
— Lai V riiandrabai 821
Anandprakash v Narain Das, 454
Anandram 7’ Goza Kachan, 145
Anand Rao v Admr -Genl , Bombay, 881-,
891, 892, 905
7’ Vasant Rao, 497
Anand rav v (j^anesh, 288
Ananga Bhima v Kunj Bidian, 212
Anant v Damodhai 559

V Gopal Bai want, 388, 389
— V Tukaram, 417, 443
Ananta 7' Ramabai, 726
Anantaknshna Sastn v Prayag Doss, 930
Anath v Mackintosh, 554
Anantha v Nagamiithu, 871, 917
— 7’ Padmanabha, 981

Ananthachan v Kri'-hnaswami 496
Ananta Padmanabhasami v OR, Secun-
derabad, 446

Ananthayya v Vishnu, 536, 646, 822
Anant Ram v Channu Lai, 386, 391, 394
— V Collector of Etah, 308, 472,
473, 479, 485, 486, 487, 494, 506, 790
Andale v Secy of State, 976
Andrews v Joakim, 914
Angammal v Venkata Reddy, 727
Angamulhu v Kolandavelu, 386

— - V Sinnapennammal, 669, 805
— V Varatharajulu, 799
Angara] v Ram Rup, 494
Angavalathammal v Janaki Ammal, 447
Anjuman t Nasiriiddin, 918
Ankalamma v Chenchayya, 404
Ankamma v Bamanappa, 149

TABLE OF CASES.

XXV

Ankamma v Kameswaramma, 508.
Anmale Kucr v, Kamala Dut, 660.

Anna v. Oojra, 800.

— V Jaggu, 800.

Annabhat v . Shivappa, 395, 438.

Annada v, Mithilal, 943

— Chandra v, Brija Lai, 944.

— Charan v Kamala Sundan, 917,

924.

— Prasad v Prasannamoyi, 956.

— Sundan v Ratan Ram, 909

Annajj v Narayan, 946.

Aniiaji V Rdghiibai, 18

Annamaldi v Murugesa, 380, 448, 573

Annamalai v. Palamappa, 531.

Annarnalai (]hetliar v, Koothappiidayar,

570

Annamalai Clu*tty v Siibramania, 373
Arinammah t Malj3ii Bali Reddy, 234, 235,

269, 273

Annapurnamma v Appayya, 225, 230.

— V Venkamma, 627.

Annapurni Nachiar v Forbes, 208, 258,
260, 665, 859

Annasami Pillai v Ramakrishna, 935, 939,
942, 943, 944, 948
Annayya v Ammakka, 928
Annayyan v Chinnan, 647.

Annoda v Kally Coomar, 388
Anpiirnabai v Duigapa. 308
Antaji V Dallaji, 274, 277.

Antamma r Kaveri, 973.

Antu Yeshwant, 800, 803
Anund V Dberaj, 77

— Churid V Kishen, 462
Anundee v Khedoo, 557, 615
Anundlal v Dheraj Giinood, 850
Anund Moyee v, Boykantnath, 941.

— — V. Sheebchiinder, 207

Anup Naram Singh v Mahabir, 806
Anurago Kuer v Darshan Rout, 559.
Anwar Ilosseen v. Secy, of State, 882.
Apaji V Gangabai, 829
— Narhar v Ramchandra, 352, 532,

645.

Aparna v. Shibaprasad, 852.

Appa V Kachai Bayyam Kutti, 970
Appaji V Mohiinlal, 619, 622, 684
Appalasami v Venkanna, 771.

Appalasuri v Kannamma, 653.

Appandai Vathiyar v. Bagubali, 963
Appanna Poricha v. Narasinga Poricha,

946.

Appan Patrachariar v Srinivasa, 465, 884
Appasami v Nagappa, 940, 944.

Appavu Naicken, In re, 516
Appayasami v, Midnapore Zemindan Co.,
844, 846, 850.

Appayya v. Vengii, 248.

Appibai V, Khimji Cooverji, 149, 172, 178,

824, 825, 827, 834.

Appovier v Ramasubba Aiyan, 340, .341,

380, 558, 567, 572, 573.

Appu Bhatta v. Gma Sundan, 597.
Arayalprath Kunhi v Kanthilath, 970.
Ardhanan v Ramaswami, 610.

Anff V. Jadunath, 868
Arthur v, Bokenham, 71
Arulananda v Ponniiswami, 298.
Arumugam v Miithu, 419, 427
Ariirnuga v, Ranganatha, 554
Ariimuga v. Viraraghava, 188, 826
Arumugam v Tulkanam, 190
Arumugam Chetty v Duraisingha. 306.
Aiunachala v Kuppanada, 516, 819
— V Periaswami, 446
Arunaclialam Raman, 420
— V Velliappa, 401
Arunachdlathamrnal v E^akki, 806
Aft'unacheld v Vailhilinga, 386, 387
Aiunacliellum v lyasamy, 240
Arunagin r Ranganayaki, 651, 691.

Asad All V Haidar All, 843
Asa Ram v Karan Singh, 421
Ashabai v flaji Tyeb, 100, 5.59, 951
Asbanidlah v Kali Kinkiir, .525
I Asharam Ganpalram v Dakore Temple
% Committee, 929

Asharfi Kunwar v Rup Chand, 88, 210
Ashurfi Singh v Biseswar, 909.

Ashutosh V Chidam, 782

— V Doorgaehurn, 903, 916, 923
Asitamohan v Nirode Mohan, 208, 252,

262, 941

Assam V Pathumma, 100
Assur Purushotam v Ratanbai, 212.
Asutosh V Tarapada, 362, 363
Atar Singh v Thakar Singh, 354, 377
Atchayya v Kosaraju Narahari, 305.

Atma Ram v Bajirau, 43, 591, 593, 628,

699

— — V Bankumal, 144, 145, 149,

386.

— ‘ — Sakha Ram v Vaman Janar-

dhan, 867

Atrabannessa v, Safatullah, 957
Attenborough v Solomon, 911.

Atul Krishna v, Sanyasi Churn, 747, 748

— — Roy V. Lala Nandanji, 438,

439, 563.

Audh Kiimari v. Chandra, 659.

Audiapp^ V Nallendrani, 301, 305
Audyappa vi Mjthulakshmi, 482
Aukula Sanyasi v, Ramachandra, 485, 791.
Aulad All V All Athar, 871.

Aumirtolall v. R^oni Kant, 660, 661, 706.
Aunjona Dasi v Prahlad Chandra, 149.
Aurabindanath v Manorama Debi, 811.
Aushootosh Chandra v. Taraprasanna, H3.
Authikesavalu v Ramanujam, 133, 139,
140, 171, 172.

Avudai Ammal r. Ramalinga, 624, 679.
Awadh V, Sitaram, 539, 540.

Awadh Naram v. Sant an Narayan, 768,

784

Ayiswaryanandaji v. Siva]i, 649, 651, 741,
745, 772, 774, 941.

XXVI

TABLE OF CASES.

Ayma Ram v Madho Rao, 253
Ayyakutti v Penaswami, 555
Ayyavu i Niladatchi, 262, 284
Azimut V Hurdwaree, 952, 953.

B

Baba v Timma, 464, 467, 495
Babaji r Balaji, 742
— V Bhagirathibai, 242
— V Knshnaji, 476
— V Vdsudev, 503
Babanna v Parawa, 364, 568, 572
Babii alian Govinddo'^s v Gokuldoss, 578,

579, 686.

— r Official Assignee of Madras, 394,

579

- Anaji V Ratnoji, 266, 273, 347 •

— Lai r Nankii Ram, 161, 631, 632,

634, 636, 639

— - M )ti Singh V Durgabai, 96, 209

Padmanabhudu v Buchamma, 211

— Ram V Mt Kokld, 189, 826

— r Mahadcv Ram, 428

— Rama^ray r Baboee Radhika, 558

— - Ramji V Rdi Mahamaya, 417 ^

-- Rdo V Pandhannath, 429

— — Tiikaram, 804, 805

- Singh V Behan Lai, 429, 432

— V Mt Ldl Kuer, 496, 884
— V Rdineshwar, 796, 803, 805
B’dbubai i Ljam Lai, 374
Babund v Jagat Narain, 545
Bachcha i Gajadhai, 958
Bachha Jha v Jugmon Jha, 53, 758, 760
Bachint Singh v Ganpat Rai, 930
Bachirajii r Venkatappadii, 740
Bachoo V Khushaldas, 540

— V Mankore Bai, 233, 268, 464, 540
r Ndgindas, 262
Bachu V Mt Diilhina, 801
Badham r Madho Ram, 515
Badn Prasad v Madan Lai, 419, 428
Race Giinga v Baee Sheokoovur, 245, 247

— Rulyat V Jeychund, 147, 149, 174

— Button V Lalla Munohur, 187

— Sheo V Riiltonjee, 187, 300
Bageshar v Mahadei, 898

Bahadur Singh v Mohar Singh, 347, 797.

— V Ram Bahadur, 806
Bahii Ndnaji v Sundarahai, 69, 76
— Ram V Rajendra Baksh, 361, 371,
664, 873, 903

Babur Ah v Sookeea, 312

Bahuna Saraswati v Bahuria Sheoratan,

827

Bai Baiji t; Bai Santok, 100

— Bapi V Jamnadas, 903, 921

— Chanchal v Chimanlal, 781

— Daya v Natha Govind Lai, 824, 829
Bai Devkore v Amritram, 629, 885

— Devmoni v Ravishanker, 957

— — V Sanmukhram, 841

— Dhondubai v Laxmanrao, 286

— Divali V Patel Bachandas, 361, 903.

Bai Diwali v Moti, 149, 174.
i — Gulab V liwanlal, 179, 181, 183.

I — — t; Thakorelal, 298, ^67, 881

— Hirakore v Trikamdas, 575.

' — Jivi V Narsmgh, 190

i — Kanku v Bai Tadav, 809, 824
— Kesharbd v Shivsangji, 264
— Kesserbai v Hunsraj, 35, 47, 52, 58,,
.622, 757, 758

— Kushal V Lakhma, 866
— Machhbai r Bdi Hirbai, 102
— Manchhd v Narotamdas, 368

— — i Tribhovan, 811

— - Mangdl V Rukhmini, 825

I - - Mam V Usuf Ali, 409, 412
I - - Mdniibhai r Dossa Merarji, 868
! — Meherbai v Maganchand, 938

I - - Motivabu V Mamiibhai, 887, 900, 919..

I -- Ndgubai V Bdi Mo^ighibai, 647, 823
' -- Nani V Chum Lai, 247

I - - Narmada v Bhagwantrai, 741, 745
1 — Parson i Bai Somli, 346, 354, 663, 756

I — Parvdti V Manchharam, 793, 794, 803

— — I Tarwidi, 830

I — Premkuvar v Bhika, 189
I — Raman t> Jagjivandas, 759
I — Ramkore r Jamnadas, 147
, - - Sdkar /’ Ismail Gafoor, 100

1 - Sundari Dassya v Benode Behary, 921

I - - Ugn V Purshottam, 172

— Vj|li V Bdi Prabhalakshmi, 623, 631,

638, 673

Bduhd (»aiiranga Sahu i Sudevi Mata,

945

Bdijnath i' Mahabir, 661
r M ah raj, 356

Prasad Tcj Bali Prasad, 338,
364, 720, 844, 847, 848, 849, 851,
855, 857, 861

— Rdi V Manglaprasad, 806
Baijun r Bnj Bhookun, 792
Bairon Dei t Ram Sewak Lai, 826
Baisnabchandra v Ramdhon Dhor, 452
Baisnav Charan v Kishoredas, 880
Baisni V Riip Smgh, 833
Bajaba v Tnmbak Vishvanath, 372
Bajrangi v Padarath, 477

— Singh V Manokarnika, 278, 658,.

793, 795, 796

Bakhshi Ram t Liladhar, 494
Bdkhtawar r Bhagwana, 794
Bakiibdi Manchhabai, 659, 729
Bala V Balaji, 467
— 1 Baya, 794, 801
-- Anna v Akubai, 510
Balabux i\ Riikhmabai, 568, 569, 572, 578,.

579.

Balabai r Mahadu, 251
Balabhadra v Rangarao, 314
Balaji V Datta Ramachandra, 207.

— V Ganesh, 503.

— V. Gopal, 388

TABLE OF CASES.

XXVII

Balaji Narayen v, Nana, 308, 402.

Balak Ram v. Nanu Mai, 252, 287.
Balakrishna v. Chintamani, 376

— V, Miittusami, 381, 385, 527,

528.

Balakrishnan v. Chittor Bank, 94.

Balamba v. Krishnayya, 375.

Balamma v. Pullayya, 617, 681.

Balappa v. Akkubai, 488.

Balaram v, Ramchaiidra, 571.

Balarami v. Pera, 263, 296
Balasiibrahmanya v Siibbayya, 207, 211',
223, 603, 672, 673, 674, 677, 745, 773,
852.

Balasundaram v Kamakshi, 74, 763
Balaswamy v. \enkataswamy, 932
Balbhadra v Bhowani, 866
Baldco V Mobarak, 449, 450.

— V Sham Lai, 466

— Bajoiia V. Sarojmi, 838.

— Dds V. Mohamoya Prasad, 145

— — V Raj^hunandan, 818.

— Prasad v. Arya Pritinidhi Sabh.i,

689, 733.

— — r Fv.teh Singh, 781.

— Sdhai V. Jumna. 142, 145.

— Singh V. Mathura, 627.

Bal Gangadhar Tildk v, Shnnivas Pandit,

34, 217, 253.

— Krishna v. Ram Krishna, 558, 561, 568,

572.

Balgobind r. Ram Kumar, 813.

Balgovind v Badri Prasad, 68, 658.
Balgovind Das t. Narainlal, 444, 445, 493.
Balkr Mahapatra v. Brojabasi, 435.
Balkisen v. Ram Narain, 539, 559,577,578
Bal Kisen Devchand v Kunjalal Iliralal,

96.

Balkisen Lai v. Choudhuri Tapesur, 435.
Balkrishna v. Hiralal, 789, 819

— V, Lakshman, 52, 664.

— V. Morokrishna, 388.

— V, Municipality of Mahad, 386.
— V Paij Singh, 656.

— V Ramkrishna, 623, 679, 680.

— V. Savitribai, 566, 598, 652
— Motiram v. Shri Uttar, 274.
Ballubakant v, Kishenprea, 253.
Balmukund v, Bhagwan, 866.

Balmukund v, Mt. Sohano, 565.

— V, Tula Ram, 942.

Bal Rajaram v. Maneklal, 409, 419, 429,

432.

Balraj Singh v, Jai Karan, 179, 187, 691.
Balubai Hiralal v. Nanabhai, 144, 145.
Balu Sakharam v. Lahoo Sambhaji, 235,

237, 268.

Balusami v Lakshmana Aiyar, 404.

— V, Narayana, 49, 631, 674, 678.

— Iyer In re, 438, 454, 455
Balusu Gurlingaswami v Balusu Rama-
laksh mamma, 20, 25, 34, 37, 40, 41, 42,
57, 138, 173, 200, 228, 240, 244, 245.
Balvantrav v. Bayabai, 241.

Balwant Rao i. Baji Rao, 96, 97, 742, 767.
— Singh V. Clancy, 306, 309, 312.

— — V. Roshan, 823.

— — v. Jothi Prasad, 274.

Balzor v, Raghunandan, 481.

Bamdeb v, Braja, 137.

Bamundoss r. Mt Tarinee, 211, 277.
Banamali v. Arjun Sen, 298, 299.
Bamasoondury v. Anund, 597.

Banarsi Das v. Maharani Kuar, 387.

— — V. Sumat Prasad, 71, 210, 230,

257, 275.

Bandhan Singh v. Mt. Daulata Kuar, 813.
Bandhu Prasad v Dhiraji Kuar, 298.
Banga Chandra v. Jagat Kishore, 485, 486,

791, 796.

Bangaru v, Vijaya%iachi, 835.

Bank of Bengal v. Ramanadha, 401.

Bank of Hindustan v Premchand, 866.
Banke Bihari v. Brijbehari, 562.

Bankey Lai v, Durga Prasad, 438, 439, 4^10.

— — V. Nathu Ram, 464.

— — V Peare Lai, 919.

Bankey Lall v. Raghunath, 811.

Bankim Behan v. Probodhchandra, 775.
Bahoo V. Kashi Ram, 376.

Bansidhar v Dulhatia, 746, 814.

Bansilal r. Gobind Lai, 925.

Banwari Lai r. Mahesh, 518.

Banwari Mukund v Ajit Kumar.958
Bapiraju v. Sri Ramulu, 439.

Bapu V, Shanker, 558.

Bapu Appa v. Kashinath, 756.

Bapuji r. Datu, 726.

Bapuji V, Pandurang, 553, 732.

Bapu Rao v. Krishtappa, 845.

Bapu Singh v, Behan Lai, 478.

Bapu Taiya v. Bala Ravji, 404.

Barabani Coal Concern, Ltd. v. Gokul, 942
Barada Prasad v. Krishna Chandra, 400,

793, 809.

Baramanund v. Chowdhury, 262.

Baramdeo t\ Lai Bahadur, 792.

Barati Lai v, Salik Ram, 806.

Baroda Kanta v, Chunder, 958.
Barodasunderi v Dinobandhu, 957.
Barkhurdar v. Mt. Sat Bharai, 905.

Barry v. Butlin, 881.

Basamal v. Maharaj Singh, 435.
Basangavda v. Bi^sangavda, 619.

Basant Kumai v. Ram Shankar, 273, 806,
883, 906, 909.
— Singh V. Brij Raj Saran Singh, 197.
Basanta Kumar, v, Jogendra Nath, 577, 578.

— — V, Kamikshya Kumari, 316,

747, 748, 762.

— — V. Mohesh Chundra, 391.
Basappa v. Fakirappa, 803.

— V, Gurlingawa, 258, 280, 281, 282,

665 .

— V. Rayava, 656.

— V. Sidramappa, 205, 217.

Basava v. Lingan Gowda, 89, 274, 281.
Basdeo v, Jagru, 871.

XXVIII

TABLE OF CASES.

Bashetiappa v. Shivlmgappa, 196, 240, 242,

255

Bashiriiddin v Mahadeo, 478
Bathibt Narayan v Bmdeshwan, 545

— V Si a Ramachander, 896
Basoo V Ki'shen, 924
Basiideo 7’ Baidyanath, 802
Bawdnt V Mallappa, 198, 207
Bae.avdntrav v Mantappa, 75
Bata V Chintamani, 568.

Baudains v Richardson, 881

Bawandas v. O M (^hienc, 437, 454, 456

Bdwani V Amhahav, 284

Bayabai i' Bala Venkatesh, 228, 283

Bdyapparajii v Lakshmamrna, 842

Bdyavd i Pdrvattva, 597, 659

Baynath ?’ Ram Bilas, 404

Bechd r Mothina, 829, 839, 840

Bechdr v Bdi Lakshmi, 779, 884

Beck V Pierce, 420

Bedford v Beilford, Re Sigsworth, 729
Beer Perlab v Maharaja Rajender, Hiinsa-
pore (d^e, 77, 371, 463, 816, 817, 879,
880, 883

Beg V Alidh Ditta, 68

Behan Ldl v Kailas Chunder, 263

— — V Madho Ldl, 798
Lalji V Bai Rajhai, 837, 839

— — r Shih Lai, 280, 281, 282

— — V Sindu Bdla, 873
Bejai Bhupindar, 356

Bell Ram v Sardari Lai, 363
Bemola v Mohiin, 469, 489
Benares Bank v Harmarain, 310, 395, 396,
397, 398, 469, 470, 179
— V Krishna Das. 393
Bfngal Coal Co v Sitaram, 953.

Bengal Insurance & Real Property Co v
Vellayammal, 375

Beni Madho v Bhagwdn Prasad, 902

— Mahdo V Basdeo Pdtdk, 432

-- Madho V Chunderprasad, 480

— Prasad v Gurdevi, 573

— V llardai Bihi, 37, 244
— V Puranchand, 354, 355, 422,
430, 434, 718

— Ram V Mansingh, 477
Benode v Piirdhan, 659, 705, 756

— Behary v Nistanni Dassi, 8,99
Benodehehary i’ Shashi Rhiissan, 173
Bepin Bthari v Brojonath Miikhopadhydya,

273

— — V Durga Charan, 795
Bera Chandramma v Nagarna, 763
Beresford v Ramasubha, 850

r Royal Insurance Co , 729
Berhanipore case, see Raghunatha v Brozo

Kishoie,

Besant v Narayaniah, 300, 303

Best re, Jarvis v Birmingham Corporation,

920

Beti V Sikhdar, 557

— Kunwar v Janki Kunwar, 545
Bhaha Kanta t Kerpai Chiitia, 705.

Bhabani Charan v. Suchetra, 931.

Bhaba Pershad v Secy of State, 315
Bhabatarini v Ashmantara, 916, 917, 922,
Bhagaban Ramanuja Das v Ram Prapai na,

204,

— V Raghiinandan, 726, 939
Bhagabati v Kali Charan Bhagat, 870, o88,
890, 902, 910

— V Kanai Lai, 829
Bhagat Ram v Buta Singh, 3}4
— — r Mt Sahib Devi, 839

Bhagbut Pershad v Girja Koer, 416, 425,*

430, 432

Bhagbutti V Chowdhury Bholanath, 776,

I 897.

Bhdgirathi r Ananthacharya, 837

— V Jokhu Ram, 190, 410, 476
V Sheobhik, 494
Bhagirthibai v Baya, 681
' — V Dwarakabai, 830

' — V Kahnujirav, 52, 661, 742,.

767, 779, 883

I — V Radhabai, 246

j Bhdgwan v Gianchand, 866
i — Mahadeo, 474, 481

, _ _ Mahadeo Prasad, 787

~ r Wariibai, 52, 132, 621, 622.

I 629, 681, 767

— Bhau V Knshnaji, 505
I Bhagwandas v Rajmal, 88. 211
I Bhagwan Dayal r Poram Sukh Das, 315
— Dei V Muran Lai, 955
Bhdgwani r Kushi Ram. 93

— Kunwar v Mohan Smgh, 557
Bhdgwan Lai v Bai Divah, 751

— Singh V Bdkshi Ram, 88, 452

— — V Behan Lai, 397, 399.

402

— — V Bhagwan Singh, 43, 57,

93, 194, 200, 201, 246, 247

— — V Kewal l^aur, 82l

Bhagwant Rao v Piinja Ram, 538, 547, 648,

649, 650, 651. 743
— Singh V Kallu, 79, 551
Bhagwant j v Mani Ram, 835
Bhagwat v Bmdeshwan, 936

— Dayal Deh« Dayal, 517, 518, 520,
786, 787, 789, 790

— — V Niviatti, 782

— — r Ram Ratan, 820

— Koer r Dhaniikdhan, 215, 216,

798, 799

— Ml sir V Mt Sheokali, 658
Prasad e Muran Lai, 215
Sahai r Bepin Behan, 522
Bhagwat I e Bhagwati, 368, 539
V Ram Jatan, 784
Bhaidas Bai Gulab, 873, 908
Bhdikashi v Jamnadas, 179, 181
Bhdirav v Sitaram, 531
Bhairo v Parmeshri, 871
Bhaiya Sher Bahadur v Bhaiya Canga, 94,

646

TABLE OF CASES.

XXIX.

Bhala Nahana v, Parbhu, 197, 783.

Bhambhar v. Sheo Naram, 401.

Bhana v, Cbendhii, 450.

Bhaniidas v Krishnabai, 314
Bhaoni v, Mahraj Singh, 78, 134
Bharateswari Dasi v, Bhagaban Chandra,

776.

Bharatpur State v, Gopal, 837, 839.
Bharmangavda v Riidrapagavda, 742, 767.
Bharmappa v. •Ujjaingouda, 203, 726.

Bharosa Shukul v Manbasi Kuer, 774.

Bhasba Rabidat Singh v Inder Kunwar,

274

Bhaskar v. Mahadeo, 742, 767.

— Talya v Vijalal, 403
Bhaskan Kesavarayadu v Bhaskaram, 380,

466

Bhasker Bhachajee v Narro Ragoonath,

207, 211

— Puru&hottdm v. Sarasvatibai, 866,

867, 868.

Bhau V. Budha Manakii, 503, 575

— V Narasagauda, 228.

— t; Raghiinath, 743, 747, 751, 767

— Abaji Deshpan^e v Ilari Rama-

chandra, 285.

— Babaji v Gopala, 783
-- Nanaji v Sundrabai, 76, 658

Bhawal Sahu v Bhaijnath, 309, 310.

Bhawani i; Mahtab, 655

— Bak«h V Ram Dai, 432
— Kunwar v Himmat Bahadur, 783.

— Prasad v Kallu, 435.

Bhekdhari Singh v Sn Ramachanderjee,

917, 924, 925, 926. !
Bhikabai v, Manilal, 78, 88, 779.

— V Piirshotham, 465, 884.

Bhikham v. Pura, 841

Bhikhi Sahu v. Kodai-Pande, 487.

Bhiku V. Keshav, 656.

— V d^uttu, 503
Bhikubai v, HariAai, 831.

Bhikuo Koer v. C.hamela, 299.

Bhikya v, Babu, 691.

Bhim Singh v Ram Singh, 428
Bhimabai v. Gurunathgoiida, 52, 218, 228,
233, 236, 237, 269.
— V. Tayappa, 234, 235
Bhimacharya v Ramacharya, 757, 758.

Bh I manna v. Tayappa, 286
Bhimappa v Basava, 273
Bhimarout v Dasarathi, 579.

Bhimava v Sangawa, 266.

Bhimrao v Mt. Gangabai, 211.

Bhimul Doss v Choonee Lall, 341.

Bhishni V Uttam Chand, 400.

Bhoba Tanni v. Peary Lall, 870
Bhobosoondree In re, 912
Bhogaraju Venkatarajii v, Addeppali Sesh-
ayya, 788, 808,

Bhojraj v Nathuram, 444.

— V. Sitaram, 791.

Bholanath v, Ajoodhia, 377.

— V. Ghadi Ram, 540.

Bholanath v. Kartick, 509, 511.

Bhola Nath Roy v, Kakhal Dass, 58, 611,.

670, 709.

— Pershad v. Ram Lall, 958.

— Prasad v. Ramkumar, 401, 454.

— Roy r. Jung Bahadur, 386.

— Umar v. Mt, Kousilla, 656, 832.
Bholibai V. Dwarka Das, 525, 529
Bhoobun Mohini v. Hurish Ch under, 873,.

895, 898, 899.
— Moyee v. Ram Kishore, 214, 232,
267, 270, 596, 906.
Bhoopati Nath v Basanta Kumaree, 824,.

825, 922.

Bhowabul v. llajendro, 958.

Bhowance v Mt Taramunee, 462
Bhowani v Jagarnath, 381, 572, 576.
Bhowanny Churn v Heirs of Ram Kaunt,.

461.

Bhngu Nath v. Narsingh, 516
Bhiibaneswari v Nilkomul, 271.

Bhudaram v Udai Naram, 476.

Bhugbutti Das v. Bholanath, 745.
Bhugobutty v Chowdhry Bholanath, 276.
Bhuegobutty Prosonno v Gooroo Prosonno,

• 891, 892, 916, 917, 922, 923.

Bhugwan v L) pooch, 956
Bhugwandeen v Myna Baee, 47, 51, 60,

' 138, 652, 653, 741, 743, 766, 778.

Bhujan Gouda v Babu, 228.

Bhujangrav v Malojirav, 69.

Bhujjan Lai v Gya Pershad, 80
Bhup Kunwar v Balbir Sahai, 510
— Singh V Jhamman Singh, 793.

— — V Lachman, 831.

Bhupal V. Tavanappa, 532, 825

— Ram V Lachma Kuar, 801
Bhupati Charan v. Chandi Charan, 898,

911.

— Nath V. Ramlal Maitra, 891,
917, 920, 945.

Bhupendra Krishna v Amarendra, 273, 896.

— Nath V Bhuanchandra, 808
Bhupendro Narayan v Nemyc Chand, 308.
Bhushana Rao v, Subbayya, 778, 783, 784,

785, 788.

Bhuta Singh v Mangu, 800.

Bhyah Ram Singh v Bhyah Ugar Singh,
AS, 46, 66, 87, 582, 604, 644, 683.

I BhyrochiiniLi;. IJiii^somunee, 567.

I Bhyrub v Gogaram, 388.

' Bibee Solomon v. Abdul Aziz, 314.

I Bibi Sahodra r Rai Jang, 786.

Bickersteth v, SLlinu, 902.

; Bidliii Sekar v Kuloda, 927.

I Bihari Lai v, Daud Hussain, 805, 806.

I Bijay Kumar Singh In re, 299.

I Bijoy V Ranjit, 218.

— Chand v Kalipada, 917.

— Gopal V Ginndranath, 778, 793, 794,

795, 796.

— — V, Krishna Mahishi, 517, 766,
768, 778, 786, 811, 8ir

Bikutti V. Kalandan, 978

XXX

TABLE OF CASES

Bilas Kunwar v Desraj, 949, 952.

Bilaso V Dinanath, 545

Bimalabala Sinha v Debi Kinkar, 940

Bimal Kri«ihna v Jnanentlra Krishna, 927,

947

Bimold i Dangoj), 705, 706

Bincla V Kaunsiha, 184, 190

Binda Kiier r Lalita Pra«?ad, 287, 804

Btnddji t’ Mathurdbai, 299

Bind( shri v Chandikd Pra«^ad, 306

Bindeshwan p Han Narain, 794

Bindo 7' Shdinlal, 305

Bindoo V BoIk, 815

Bindra 7’ Malhuia, 49

Bindii Bashin(e Dtbi v Kashinath, 950,

956

Bmodini 7 Snstliee, 705, 706
Bipat Mahlon v Kiilpat Mahtan, 786
Bipradas v Sadhanc handra, 908
Birbhadra u Kalpataru, 261
Birendra Nalh r Mirtunjai Singh, 846
Bireswar v \rdhd Chander, 240, 252, 286
Bin Singh v Nawal Singh, 388
Birj Mohun r Rudr Prakash, 298.

Biru V Khandii, 622
Bishambar v. Fateh Lai, 401

— - Dab V Kanshi Prasad, 570

— 7’ Mt Phiilgari, 939
Bishamber Nath v Lala Amar, 576
Bjshambharnath f Sheo Narain, 450
Bishamblnir i Sudasheeb, 468, 476
Bishen Chand v Syed Nadir, 924, 939
— Dayal i' Mt Jaisari Kuer, 781
— Perkash v Bawa, 460

— Singh V Kedar Nath, 453

Bisheswar v Shitul, 372
Bisheshwardas v Anjor Singh, 792
Bishnath Prasad v, (^Iiandika Prasad, 908
Bishii Nath v Ram Ratan, 770
Bishwanath v Kayastha Trading Corpora-
tion, 395, 485

— 7 Official Receiver, 454

— Prasad v Gajadhar, 509, 661

Biswanath v Jugal Kishori, 209
Bissessiir v Seetul, 372

i Luchmessiir, 376, 431, 951
Bissonath v Bamasoondery, 899, 903, 905.
Bistoo Pershad v Radhasoonder,^760
Biswanath v ( ollertor of Mymensingh,

' ‘ 387

Biswanath v Jugal, 209

— 7’ Ram Piasad, 789

— Pershad v Jagdip Narain. 468

— — V Khantomani, 770

— — V Shorasi Bala, 178

Bithaldas 7 ’ Nandkishore, 444

Bivi Umah v Keloth Cheriyath Kiitti, 977

Blackwell In re, 902

Blair V. Duncan, 920, 921

Boddii Joggay>a v Gob Appalaraju, 771

Bodh Narain v Omrao, 552, 726, 730

Bodha Kuer v Sahodra, 729

Bodhrav v Nursing Rao, 846

Bodh Singh v Gancsh, 376, 954.

Bodi V Venkataswami, 882, 884.

Bodomal v Mt Krishnibai, 96
Bolakee v Court of Wards, 372
Bolyc Chund v. Khetterpaul, 743
Bommadevara Naganna v Bommadevara
Raja, 826, 827

Bommayya Ilegadc v Jalayakshi, 831.
Bomwetsc'h v Bomwetsch, 822
. Bonnerji t Sitanah Das, 932

Bonomali v Jagatchandra, 278, 473
Boolchand 1 Janokee, 172
Booloka 7' Comarasawmy, 846
Boolokam v Swornam, 369
Bossonaiith v Doorga Ptrsad, 300
Boyce v Rossborough, 881
Brahmayya v Rattayya, 223, 224, 225, 226
Brajd Bhukan v Buchan, 726
Braja Lai v Jiban Krishna, 700, 701, 710,

711, 810

Brajeshwaree v Manoranjan, 799
Bramamayi v Jagcschunder Dutt, 899
Brij Behary v Punni Lai, 412
Brijbhookunjee v Gokoolootsaojee, 211
Brijbukandos v Ghafdhiram, 301
Brij Tndar v Janki Koer, 371, 745, 749,

751

' — Kunwar v Sankata Prasad, 357, 373

— Lai V Indra Kunwar, 485, 791.

I — — V Narayan Das, 919, 921

— — V Suraj Bikram, 900, 901

— Mohan r Kishan Lai, 636
Brijmohan v Mahabeer, 432
Brij Mohun v Rachpal, 784, 785
' Brijnandan Singh v Bidya Prasad, 420,

' 421

' Brij Narain v Mangla Prasad, 398, 419,
i 427, 429, 466, 512, 515

— Nath V Lakslimi Narain, 412
i — Raj Singh v Sheodansingh, 488, 496,

I 558,. 880, 884.

I Bnnda Radhica, 829

I Brindabun v Chundra Kurmokar, 149, 174
I — 7 ; Sri Godamojee, 945

I Brindavana v Radhamani, 51
, Brojendra v Nilkunja, 401
! Brojeshwaree v Manoranjan, 798
j Brojo V Sreenath Bose, 708

Brojosoondery v Luchmee, 916, 924
Browne v Moody, 902, 904
Buchiramaya v Jagapati, 778
Budansa Rowther v Fatma Bi, 72, 87, 97,

102

Buddha Singh v Laltu ‘^ingh, 46, 47, 48,
49, 50, 51, 56, 58, 61, 158, 159,
342, 595, 599, 601, 603, 620, 632, 633,
667, 668, 671, 672, 684, 685
Budree Das v Chooni Lai, 946
Budry Roy v Bhagwat, 545, 547
Buhuns V Lalla Biihooree, 954
Biikshiin V Doolhin, 475
Bulakhidas v Keshav Lai, 652, 661. 742,

767 .

Bulaqi Das v Lalchand, 416.

TABLE OF CASES.

XXXI

Bulli Appanna v. Subamal, 172.

Bungbce v. Soodist Lai, 386, 389.

Bunwari*Lal v Daya Sunkar, 508, 510, 511,

574.

Burham v, Punchoo, 666.

Bur Singh v Uttam, 881.

Burrayya v Ramayya, 307.

Butamal v. Lopalsingh, 428, 819.

Byjnath v, Kopilmon, 97.

— Lall V Ramoodeen Chowdry, 506.

c

Caldwell v Caldwell, 920.

Callv Churn v Bhuggobutty, 297
— — 17. Jonava, 547.

— Naiith ?7. Chunder Nath, 892, 899,

903.

Campbell v, Campbell, 174.

Cavaly Vencata i7. Collector of Masulipatam,
187, 688, 790

Chahhi V Parmal, 806 I

Cham Siikh i; Parbali, 247, 248
Chairman, Dt Bd , Monghyr v Sheodutt I

Singh, 45 k

■Chaitanya Gobind # Dayal Gobind, 880
Chakhan Lai r. Kanhaiya Lai, 411.

Chakkutti V Chanthukiitti, 94
(3iakra Kannan v Kunhi Pokker, 359, 361,
969, 973, 987.

Chakrapani Misro v Sada^^iva, 389
Chalakonda v (Uialakonda Ratnachalam,

74, 368, 369

Chalamayya v Varadayya. 401, 450, 468
Chalii Krishnan v Rama Maran, 981
Challapalh\ rasCy see ^ arlagadda v

Yarlagadda

Challa Siibbiah v Pahiry. 800
Chamaili v Ramprasad, 494
Chamanlal v Bai Parvati, 779, 885
Chaman l.al r Doshi (kinesh See Sha i
('harHan Lai v Doshi Gaiiesh
Chamai v Kasfii, 656.

Chamava v Traya, 822. I

Champa r Offitial Receiver, 400, 455, 840, |

841.

Champak Lai v Raya Chand, 421.
Chanbasappa v Madivalappa, 238, 271.
Chandania v Salig Ram, 291
Chander Kishore v Dampat, 494, 496.

— Pershad v Sham Koer, 432, 436
Chand 1 Balaji, 316, 387.

Charan v Dulal Chandra, 916, 923,

925

— - — V Sidheswan, 871, 887.

— Das 17. Mdlinabala, 896.

— Mitra V Hanbola, 919, 921.

Chandika Baksh v, Mima Kumar, 42, 77,

78, 666.

Chand Mai v, Lachhmi Narain, 880
Chandra v, Gojarabai, 234, 235, 237, 269
Chandrabhaga v Anandrav, 865.
Chandrabhagabai v Kasbinath, 834
Chandra Deo v. Mata Prasad, 428, 494,

51.5.

— Kishore v. Prasanna Kumari, 911.

C

Chandrakisor v. Upendra Chandra, 485.
Chandra Kiinwar v. Chandri Narpat Singh, ^

263, 287.

— Mala 17. Muktamala, 253.

— Mam V. Jambeswara, 510, 511.

Mohan v, Jnanendra, 917.

— Nath V. Jadabendra, 944.
Chandrapal v. Saiabjit, 299.
Chandrasekhaiudii t7. Brahmana, 202.
Chandrashekar v. Kuiidan Lai, 554.
Chandreshwar v. Bishwes?war, 249, 257.
Chandrika v Narain 415.

— Baksh V Bhola Singh, 944.
Chandn Si^h v Gobmda Das. 793, 809.
Chandu v. Raman, 986.

— V Subba, 984
Chandu lal t Mohimal, 391.

— V Mukhaiuli. 299.

— f. Rampat IVIal, 922.

Chanvirappa v Danava, 539, 540.

Chapman re Hales r A. G , 920.

Chappan v. Ram, 986
Charanjit v Amir All, 94.

Charjo v. Dmonaih, 84
CJiarondas r Nagubai, 823, 824.

Charii (thunder v Nobo Siindari, 706, 726,
730, 760, 762.

Chatar Sm r Rajaram, 405

Chatha Kelan t7 Goimder, 444

Chathu Nair r. Sekharan Nair, 987, 988.

— Nambiar v Sekharan, 973, 987.
Chattari Raja v Rama Varma, 71, 72, 988.
Chatterbhuj Patnaik i Krishna Chandra,

' 647.

Chalti Soopi V Kannan Nayar, 977.

I (.hattiirbhooj v Dharamsi, 355, 360, 464.
(3idturbliooj Smgh v Sarada Churn, 922.
Chaturbiijadoss v Rajamanicka, 810.
(’hdiidhun l^jagar v Chaiidhuri Pitam,

509.

Cheda Lai x\ Gobind Ram. 906, 909.
Chedambaram v Ma Nyem, 79, 551
Chekkulti v. Pakki, 984.

Chelikani v. Suraneni Venkata, 598, 631.
Chelimichetty v. Subbamma, 563.

Chella Papi v. Chella Koti, 296.
Ghellamamma v Subbamma, 866, 870.
Chellammal v. Ranganathan, 650.
Chellaperoomall v, Veeraperumall, 369.
Chellyamal r.*Miittialammal, 362.
Chemnaiuha r. Palakiizhu, 126.

Chenava v, Basangavda, 281.

Chenchamma v. Subbaya, 296
Chengareddi r.^Vasudevareddi, 215.
Chengal Reddi v. Venkata Reddi, 313.
Chengamma t7 Munisami, 533
Chengappa v, Baradagunta, 654.

Chengiah v Siibbaraya, 632, 674, 675, 678.
Chenvirappa v Puttappa, 958.
Chenvirgauda v. Dt. Magistrate, 825.
Cheri Pangi v Unnal Achan, 978, p82, 983.
Chet Ram v Ram Singh, 419, 428, 515.
Chetti 17. Chetti, 97.

Chettikulam Venkatachala v, CheAikulam,

411.

XXXII

TABLE OF CASES.

Chett> Colum v Riinga-swamv, 782
Cheyt Narain v Biin^aiee, 387.

Chhabila v Jadavbai, 557.

Chhakaun Mahton r. Ganga Prasad, 407,

408, 415

Chhatra Kuman Devi v Mohun Bikram
Sliah, 280, 874, 882

Chhidii V Nawbat, 743 !

Chhotabai v Dadabhai, 564 I

Chholalal v Bai Mahakoie, 555 '

Chhotey Lai v Dalip Naiain, '180, 481 <

— — V Ganpat Rai, 417, 418, 430, ,

437 j

Chhoti Ram v Nara^anda*^, 468, 176, 488 1

Chidambara r Kri'^hnasami, 910 I

— V Manickam Pillai, 936 1

Chidambaragauda i Channappa, 499
Chidambaram Gb<'tti i M mammal, 935
— Chettvai v Ramaswami, 401

Pillai i Rangasami, 301 ,

Chidambaranalha i Nallasiva, 399, 933, I
931, 936, 947 i

Chidambara Reddiar i\ Nallammal, 795, 1

813

Chilha r Chedi, 189

Chimabai r Mallappa, 229 i

Chimari Lai v Hanchand, 282

— V, Navratlal, 807 ,

Chimnaji v Dinkar, 783 |

Chindan Nambiar v Kiinhi Raman, 983 |

Chinna Alagum Perumal v Vinayagatham* |
mal, 188, 301, 310

— Gaundan t Kumara, 281
Chinnakimedy casr, see Raghunada i '

Brozo Ki‘'horo j

Chinnammal i Varadarajnlu, 69 '

V Venkatachala, 621, 621, 1
631, 679 '

Chinna Nagayya v. Pedda Nagayya, 247 ;

— Obaya v Sura Rcddi, 296 |

— Poochi Ammal v Ganga, 402 ,

Chinnasami v Appasami, 800. 1

— V Kunju Pillai, 50, 667 I

Chinna Sanyasi v Siiriya Ra/u, 500, 507, |

574. I

Chinnaya v Guninatham, 403, 782 i

Chinnayya v Perumal, 467. !

Chinna Pillai v Kaliniuthu, 348, 493, 498, |
' 499,* 505, 722 i
Chintaman v, Bhagvan, 508. I

— Bajaji r. Dhondo Ganesh, 917,
Chintamani v Satyabadi, 471

— Bhatla v Rani Saheba of
Wadhwan, 486
Chintaman Singh v Nowenkho Kanwari,

858.

Chiragh Dm v. Abdulla, 818
Chiranji Lai v, Bankey Lai, 429
Chitko Raghunath v. Janaki, 240, 274.

Chito V. Jhunni Lai, 800.

Chitradhar v Kidar, 315.

Chittaluri Sitamma v, Sitapatirao, 952,953. 1

Chitter V Gaura, 653.

Chokalmgam Pillai v Mayandi Clieltiar,.

. 937.

Chokhey Lai v Commissioner of Income-

Tax, 557.

fhotay Lai r Chunnoo Lai, 88, 660, 741.
Chotey Lai r Dalip Narain, 397
( houdhiiii Govinda v. Hayagriba, 411
Choudhury Ganesh v Mt Jewach, 510,

544, 557

('hov\dhr> v Brojo Soondnr, 485

— (Jiintamiin v Mt Nowluklio, 77,
594, 596, 615, 658, 844.
Thakur v Mt Bhagabati, 545
Chowdiee i Ilanooman, 294
( liowdrcy r Riis=oinoyee, 780
( ht>wdry Piidiim v Koer Oodey, 208, 209,
214, 287, 292

( hiistien V Tekaithi Narbada, 654
( lim kun V Poran, 383, 390
( hulhan v Mt Akli, 84, 813
( hniidee j MacNagiiten, 389
( huiulei Kiimai v lluibuns Sahai, 956
Miillick V J«v;(-ndra Nath, 917.

( hundiabiillt e r Biiidie, 771

(. hnndra Kaminey v Ram Ration, 954.

Chiiiidn V Mt Bibi, 75

Chandro v Nobm Soondur, 98

Chunilal v Jaigopal 859

Ghuni Lai r Mokshada, 769

— i Su raj ram, 133, 139, 1 10, 172.

758.

( lumi Ldl Parvati r Bai Sainratli. 895
(. hunnibai r (^irdbarilal, 241
(.huotuiya r Saluib Piirhulad, 536, 646,

822, 861

Clmrainan Salui v Gopee Saha, 477, 482.

483, 783, 960

( hiiitan Lai v. Kalla, 509
( h utter Sein's c«6e, 941 fi

Collecioi of Dacca v Jagat' Chundei, 688

— — Gorakpar v Ham bandar Mal,

288, 351, 364, 848, 849, 851,
857, 859, 861

— — Madura v Mootoo Ramalmga,

42, 47, 49, 51, 52, 57, 59, 60,
67, 70, 77, 209, 218, 219.
220, 223, 224, 226, 227, 228,
230

— — Masalipatam v. Cavaly Ven-

kata, 223, 687, 688, 766, 769.
778

— — Surat V Dhirsinghi, 240.

— — Tirhotl V. Huropershaad, 295
Commis‘4ioner of I -T. v Lakshminarayan,

339.

Commisbioner of I -T. v. Lakshmipathi

824.

Commissioner of I -T. v. Pemsel, 914
Commissioner of I -T. r, Zamindar of
Chemadu, 861, 862..
Constable v. Bull, 898
Cooverji v, Dewsey, 429, 430.

TABLE OF CASES.

xxxiir

Cossinath t. Hurroosoondry, 770 779, 780.
Court of Wards v, Mohessur, 745.

Craig V. Lamourex, 881, 882.

Curnmbhoy v. Creet, 389, 502.

Ciirsandas v Ladkavahu, 314.

Ciirsandab Govmdji v, Vundravundas, 919.

D

Dadaji i Rnkmabai, 173, 189, 826.
Dagadu Govind v. Sakhubai, 573.

Ddgai t Mothiira, 865.

Dagdu V. Balwant, 958.

Dagree v. Pacotti, 91.

Daiva Ammal v. Selvaramanuja, 398.
Daivanayaga v, Muthureddi, 72.
Daivasikamani t. Noor, 938.
Daivasikamani v Periannan Chetty. See
Ponnambala v. Penyananchetti.
Daji Hi mat r Dhirajram, 315.

Dake^hui i. Rewar, 315.

Dal Bahadur v. Bijai Bahadur, 287.

Dal Singh v Mt Dim, 627.

Dalai Kiiiiwar v Ambika Partap, 278,

834 .

Dalibai v, Gopebai, 308, 485.

Dalip i Ganpal, 647.

— Singh r. Chaudrain, 952.
Dalpatsingji r. Raising ii, 284.

Dalsukhram t Lallubhai, 842
Damar Mahton v. Jagdip, 818.

Damodar v Bhat Bhogilal, 946.

— V, Purmanandas, 747, 748.

— V Senabutty, 540, 544, 545,

546, 717.

— Das V Lakhan Das, 935.
Damodaram v Bansilal, 397, 429
Damodarda^ v Taptidas, 907.

— i Uttam Ram, . 381 , 385 , 394 ,

, 524, 528, 540, 544, 546,

7y.

Damodhar v Damodar, 492.

Damoodhur v Birja Mohapattur, 478.
Danakoti Ammal v. Balasundara, 73, 226.
Dance v Goldmgham, 399.

Dangal v. Jaimangal, 402.

Danno v. Darbo, 659.

Darbarilal v Gobind, 781, 784, 793.
Darbhanga v. Coomar, 431.

Daroga Rai r. Basdeo, 782.

Dasami Sahu v. Param Shameshwar, 926.
Dasapa v, Chikama, 303.

Dasarathi v, Bipin Behan, 761.

Das Mai v. Ram Chand, 817.

— Merces v. Cones, 914.

— Ram Chowdhury v, Thirtha Nath Das,

291, 818.

Dattaji v, Kalba, 786.

Dattaram v. Gungaram, 308.

Dattatraya v, Gangabai, 257, 623, 675.

— V, Mahadaji, 844.

— v. Matha Bala, 38, 94, 690, 691.
— V, Shankar, 372, 376, 572.

— Govind, In re, 299, 485.

Dattatraya Sakhram n. Govind Sambhaji,

264.

— Vishnu V. Vishnu, 419, 432.

— Waman v. Rukhmabai, 835.

Dattatreya v. Prabakar, 524, 562.

Datti Parisi u. Datti Bangara, 647, 648.
Daulat Ram v. Mehrchand, 429, 430, 450,

451.

— — V. Ram Lai, 202.

Daiilta Kuan r. Meghu, 831.

Davidson re Minty v. Bowne, 920
Davud Beevi v. Radhakrishna, 502.

Daw Toke v, Maung Ba Han, 447.
Dayachand r- Hemchand, 434.

Dayaldas v. Savitribai, 734, 758.

Dayamani Devi v. Srinibash Kundu, 789.
l>aya Ram v, Harcharandas, 515.

Ddyavati v. Keserbai, 823.

Debanand v, Anandmani, 300.

Debendra v. Adr.-Genl. of Bengal, 912.
— V. Brojendra Comar, 377, 462.
— Kumar v. Fyzabad Bank Ltd ,

419.

— Nath V. Han Das, 525
% — — V. Hem Chandra, 449.

Debendranath v Nagendianath, 485.

Debi Baksh v. Chandraban Singh, 845,

858

Debidayal r. Baldeo Prasad, 393

Debi Dayal t\ Bhan Pertap, 771, 783, 784,

788.

— Dutt V Subodra, 308.

Debilal Sah v, Nand Kishore, 143, 190,

476.

Debi Mangal Prasad v. Mahadeo, 138, 718,
737, 743, 766.

— Par shad v, Thakur Dial, 347, 535.

— Prasad v. Golap Bhagat, 765, 793,

795, 797, 798, 802.

— — r. Tara Prasanna, 397, 399.

— Saran r. Daulata, 827, 831.
Debiprassanna Roy v. Harendranath, 761.
Dedar Singh v Bansi, 191.

Deendyal v. Jugdip Narain, Deendyal\
case, 425, 430, 431, 444, 447, 492, 494,
502, 506.

Deepo V. Gowreeshunker, 294.

— Debia v. Gobindo Deb, 94.

Defnes vT Milne, 413.

Deivachilai w, Vcnlcatachariar, 517.
Delanney v. Pran Han, 762.

Delroos v. Nawab Syud, 924.

Deo Baee r. Baee, 878.

— Bunsee v, Dwarkanath, 561.

Deo Kishen v. Budh Prakash, 49, 153, 726,

730, 731.

— Narain v, Ganga Singh, 510.

— Saran Bharathi v. Deoki Bharathi,

866 922.

Deoki v. Jwala Prasad, 813, 817.

Deputy Commr. of Kheri v. Khangar

Singh, 819,

— — — Pertabgarh v, Sheo-

nath, 568,

XXXIV

TABLE OF CASES.

De Thoren v Attorney-General, 174
Desu Rcddiar v Srinivasa Reddi, 814.
Devanandan Prasad v H^ihar Prasad, 432
Devaraja v. Seshappa, 985,

Devarayan v Miitturaman, 142, 146.

Devi Dds V Jdda Ram, 416, 418, 436.

— Dayal v, Mt. Indomati, 952

— Diita V Saudagar, 416.

— Persad v. Gunvanti Koer, 829, 833.
Devji V Sambhu, 431, 808
Devshankar v Motiram, 919.

Dewd Das v Shew Prasad, 940.
Dewcooverbaee's case. See Pranjivandas v

Devkuverbdi

Deyandth v Muthoor, 711 ^

Dhadha Sahib v Muhammad Sultan, 499
Dhanaldk^-hmi v Ilariprasad, 893, 897. ,
Dhanput v Moheshnath, 443
Dhanraj v. Sonibai, 88, 198, 210, 239, 240,
242, 244, 251, 289
Dhanukdhan v Rambirich, 477
Dhapo V Ramachandra, 404, 472
Dharam Chand v Bhawani, 787, 789
— — V Janki, 839

Das V Shamasoondari, 374 ^

— Kunwar v Balwant Singh, 289
Dharam Kant v Knsto Kumari, 951.
Dharap Nath v Gobind Saran, 662.

Dhara Singh v Bharatsingh, 481
Dharma v Ramakrishna, 242, 250, 255
— V Sakharam, 651, 690
Dharmdji v Gurrao Shrimvas, 309
Dharmapuram v Virapandiyam, 687, 689,

733

Dharmodas v Nistanni, 866
Dharnidhar v Chinlo, 234, 237, 269, 273
Dharnd Shetti v Dejamma, 988
Dharum Kunwar v Bulwant Singh, 215
Dharup Raj v Ram Aiidesh, 387
Dharwar Bank Ltd Mahomed Hayat,

955.

Dhir Narayan v Shiva, 411
Dhiraj v Mangaram, 792
Dholidas v Fulchand, 142, 144, 145.
Dhondi V Rddhabai, 742, 767
— ■ V Ramabald, 237
Dhondo V Balkrishna, 769
Dhondu r Gangabai, 681
Dhondy Yeshwant v Mishrilall, 792
Dhulabai v Lala Dhula', 4{)9 ,
Dhunookdaree v Gunput, 368, 369
Dhup Nath v Ram Chantra, 777
Dhurjati v. Ram Bharos, 746
Dhurm Das Pandey v Mt.*' Shama Soondri,
266, 316, 377, 546, 951.
Dhuronidhur Ghose, In re, 188
Dialchund v Kissory, 877
Dibeah v. Koond Luta, 604, 711
Dibi Prashad v Thakiir Dial, 341
Digumber v Moti Lall, 694, 701, 708, 709,

710.

Dilraj Kuan v Rikhe&war, 552, 731, 732.
Dinanath v. Gopal Churn, 262.

Dinash Chandra v. Biraj Kamini, 887, 892.

Dinash v Hrishkesh Pal, 516.

Dinbai v. Nusserwanji, 906,

Dinkar v Appaji, 404
— • V Ganesh, 227.

Dinkarrav v Narayan, 871
Dmohamy v. Balahamy, 174
Dinomani v Brojo, 288
Dinonalh v Aiiluckmonee, 521
— V. Hansraj, 919
Dmo Nath Mahunto v. Chundi Koch, 94,

694.

Dmshaw Petit v Jam'^etji, 90.

Dm Tarim v Krishna, 880, 910
Diwaker Rao v Chandanlal Rao, 287.
Dnyami v Tanu, 217.

Dnyaneshvar Vishnu v Anant, 539, 562.
Dodbasappa v Basawaneppa, 800
Doman Sahii v Buka, 94
Doobomoyee r Shama Churn, 234
Doorga V Mt Tejoo, 747
— Bibcc V Janki, 631

— Persaud v Kesho Persaud, 308,

437.

Pershad v Mt Kundun, 559
— Soonduree v. Coureepersad, 277.
Dordl‘^dlm V Nagaswami, 423
— V Nondisami, 508
— V Sandanathammal, 915
— V Thungasami, 314.

V Venkdtrama, 474.

Doraivelu v Adikesavalu, 947.

Dose Thimannabhattd v Krishna Tantri,

838.

Dowlut Kootr V Burma Dto, 660, 706

Dubo Misser r Snnivas. 943

Diiffield V Diiffield, 902

Diigappa V Venkalram, 501

Diikharam v Luthmun, 689

Dulari V Vallabdas 144

Dular Koer v Dwarkanath, 189, 544, 826,

, 827.

Dulhin Parbali v Baijnath, 652, 653, 758,
773, 775, 800.

Dundappa v Bhimava, 691
Diindoobai v Vithalrao, 234
Duneshwar v Deoshunker, 708
Dungannon (Lord) v Smith, 890
Dunput Singh v Shoolmdra, 308
Duraiswdim v Miithial, 309, 311
Durbar Khachar v Khachar Hassiir, 408,

415.

Durga V. Chanchal, 942
Durga Dat v Gita, 653

— — V Ganesh Dat, 368

— Devi V Shambu Nath, 249

— Kunwar v Mattu Mai, 786

— Nath V Chintamom, 616, 704, 778.

— Prasad v Bhajan, 494

— — V. Brajnath, 845
Durgamma v Kechammayya, 979
Durgaprasad v Jewdhari, 471, 479, 487

— V Raghunandan, 897
Durgi V Kanhaiyalal, 274
Diirgopal V Roopun, 293, 294

TABLE OF CASES.

XXXV

Dun V. Tadepatri, 570.

Durjapada Kannakar v. Miss Bailean, 304.
Durvasulii v Diirvasula, 368.

Dwarkadas v. Kishendas, 411.

Dwarka Das v Krishan Ki shore, 402, 510,

511.

— Nath V. Biingshi Chundra, 449,

450, 469.

— V Buiroda Prasad, 917,
918, 919.

^ — — y Dmobundoo, 730.

— — V. Mahendranath, 726, 730.

— V. barat Chandra, 57, 753.

— — V Tara Prosanna, 388.

— Ram V, Bakshi Parnaw, 479, 485.
Dyaram v. Baee (imba, 187.

E

Eastern Mortgage and Agency Co., Ltd. ik
Rebati Kumar, 312
Edathil Etti v. Kopashon Nair, 980.

Efari Dassya v. Podie Dassya, 882.

Eifuah Amissah v. Efluah Krabha, 71
Ejaz Ahmad v Sagbir Bano, 570
Ekoba V. Kashiram, 665.

Ekradeshwan v Homeswaar, 830, 833, 835,

836

Ekiadeswar Singh r Janeswan, 75
Eleko V. Officer Administering the Court of

Nigeria, 71.

Elia Sait V Dharamayya, 100
Elizabeth t\ Sutherland, 886
Ellokasee v Durponarain, 909.

Emi Sooramma v. Yarabati Varahalu, 296
Emperor v Antony, 102

— r. Lazar, 102.

— V Sat Narain, 747
Empre'ss v Umi, 187

Eravanni Revivarniaii r Ittappa Revi-

varman, 977.

Eshanchiind v Eshoreohund, 461, 877
Eshan Ch under Niind Coomai, 390, 497

Eshankisht)! t Hans Chandra, 196, 284
Evans r Moore, 910

F

Faez Biiksh v. Fukeeroodeen, 953.
Fai/-iid-din v. Tincowii Saha, 271
Fakirappa v Savitrawa, 207, 241, 301
— V. Yellappa, 350, 643, 644, 645
Fakirchand v Mot i chan d, 454, 455, 458
— - r Santldl, 444.

Fakirgauda v Dyamava, 743, 751
Fakir Gowda v Gangi, 89, 178.

— Muhammad v Tiriimalachanar, 319
Fani Bhushan v. Fiilkumari, 903.

Fanindra Deb i\ Rajeswari, 79, 93, 212,

286, 905.

— Kumar v, Admr. Genl of Bengal,

919

Fanindro Deb v Jugudishwari, 449.
Faqirchand v Salig Ram, 391.
Fandnnnissa r Mukhthar Ahmad, 790.

Fateh Chand v. Hiral^l, 454.

— — V, Rup Chand, 908.

Fateh Singh v. Thakur Rukmini, 803, 805.
Fatesangji v. Rewar Harisangji, 100.
Fatma Bibi v. Advocate-General of Bom-
bay, 919.

Fazilatunnissa v. Ijaz Hassan, 390.
Fekirappa r. Chanapa, 492
Felaram Roy v, Bagalanand, 819.
Fidahusem v. Bai Monghibai, 100.

Forman All v. Czii All, 863, 873, 877.
Francis Ghosal v Gabri Ghosal, 103.
Fulsingh V. Ganesh, 191.

Fultoo V, Blyirrut, 924.

Futtick Chiinder v, Juggut Mohinee, 727.

> G

Gabriel v Valliammai, 141.

Gadadhar v, Chandrabhaga Bai, 742, 767,
778, 779, 885.

— V. Ghanashyam Das 412.
Gaddam Ademma v. Anam Hanuma Reddi,

677.

Giylgeppa v. Apaji, 312.

Gadigeppa v Balangowda, 313.

Gade Subbiah v Raja Kundakuri, 771.
Gadiyam Narayudu i\ Venkamma, 296.
Gajadhar t Ambika Prasad, 470.

— V Gauri Shanker, 37, 160, 161,
164, 165, 167, 631, 632, 635,
636, 638, 640, 641, 642.

V Jagannath, 404, 421, 428, 783,

— ' V. Kaunsilla, 656, 832

— f Mt Sukhdei, 656, 832.
Gajanan Balkrishna v. Kashinath, 246.
Gajapathi v Gajapathi, 103, 136, 536, 615.

— Nilamiini v Gajapathi Radha-

moni, 652, 653.
Gajendar v Sardar, 377, 557.

Gajendra Narain v Hanhar, 380.

Gaje Singh v Mt licchaba, 485.
Gajjanund v The Crown, 149, 174.

Ganap v. Subbi, 788
Ganapati v. Savitri, 274

— V Sivamalai, 910.

— ■ V. Subramaniam, 562, 563, 565.

Gandhi Maganlal v. Bai Jadub, 742, 753,

• 768.

Ganendra JMoljuif Juttendro Mohun; see

Tagore case.

Ganesa v Amirthasamy Odayar, 474, 480,

481, 783.

V Go^ala, 219, 226.

Ganesh v. Narayan, 437.

— V. Shrinivas, 526.

r. Waghii, 618, 623.

— Chunder Dhar v Lai Behary, 893,

904, 945.

— Gir V. FatejVhand, 922.
Ganeshgeer v. Parvatibai, 688.

Ganeshi Lai v. Ajiidhia, 757.

— — V. Babu Lai, 522, 576.

— — V. Bhagwan Singh, 432.

XXXVI

TABLE OF CASES.

Canesli Lai v, Khetra Mohun, 787.

— Lala V, Ratan Bai, 304.

— Mahto V, Shib Charan Mahato,

— Prasad v. Sheogobmd Saha, 395.
— Row V. Tuljaram Row, 314, 402,

498

Canga r. Ghasita, 627, 727.

— V, Jhalo, 657
— V Kanhai Lai, 811, 817.

— V Pirthi Pal, 467.

Cangabai v Anant, 292

— V Bandu, 647, 648, 650
— V Jankibai, 842.

— V Sitaram, 829

— V Tarabai, 291. ‘

— V. Thavur, 914, 919

V Varnanaji, 460, 490, 514 ,

Gangabisan v Valabhdas, 517.

Ganga Charan v Ram Chandra, 944
Gangadaraiya v Parameswaramma, 747.
Ganga Dayal v Mam Ram, 508
— Devi V Narsing Das, 301
Gangadhar v Doraisami, 929

— V Hiralal, 37, 38, 258, 262,

756.

— V Ibrahim, 596, 645 ^

— V Prabhudha, 801.

— V Rachappa, 820.

— V YclJu, 654
Gangadharudu v. Narasamma, 369
Ganga Narain v. Indra Naram, 807
— Pershad v Jhalo, 301, 302, 657
— Prasad v Maharani Bibi, 308
Gangaraju v Somanna, 447.

Gangaram v Bapu Saheb, 386
— V. Dooboo Mama, 945
Ganga Sagor, Ananda Mohan Shaha, In re,
384, 385, 522

— Sahai V Ilira Singh, 290

— — V. Kesri, 610, 954

— — V, Lekhraj, 20, 43, 59, 60,

249, 255, 256.

— Saran v. Mt Sirtaj Kuer, 89.
Gangayya v. Venkataramiah, 398, 399
Gangbai v. Thavar, 100.

Gang! Reddi v. Tammi Reddi, 395, 482,

922, 925

Gangu V, Chandrabhagabai, 729.

Gangubai v, Ramanna, 495, 883.

Ganpat v, Annaji, 360, 308, 389^, 392, 394
— Lai V Bmdbasini, ^5.

— Narain Singh, Re, 144.

— Rai V. Bhagwat Dayal, 402

— — 17. Munni Lai, ‘ 150.

— — r. Sukhdeo Ram, 395

— Rama v. Secretary of State, 688,

757.

Ganpat Rao v, Ramchander, 745, 777.

— Valad v» Tiilsiram, 781, 784

— Venkatesh v. Gopalrao, 533, 558.

Ganpatrao v. Kanhyalal, 493.

Gantapalli v. Gantapalli, 189.

Garib Shaw v. Patia Dassi, 880.

Garuddas v. Laldaa, 610, 6(^.

Garurudhwaja v Saparandhwaja, 77, 844.
Gatha Ram v, Moohito Kochin, 172.

Gauri V. Giir Sahai, 813. .

— V Rukho, 617.

— Nath V, Gaya Kuer, 652, 653
Gauri Shankar v, Atmaram, 567, 573.

— — V Hemanta Kiimdii, 919,

921.

— — V Jiwan Singh, 479

— — V Kamla Prasad, 783

— — ' V Keshab Deo,

— — V Kiinwar Jung, 387

Gauri shankar v. Sheonandan, 420, 427, 428,

783.

Gavuredevamma v Raman Dara, 988.
Gawrikumari v Ramani Movi, 945.

Gaya v Miirlidhar, 4^8
— Prasad v Ram Pal, 476
Gedalu Narayana In re, 72, 102
Genda Pun v Chatar Pun, 939, 940
Gettappa v, Eramma, 88, 209
Ghana Kanta v, Gerali, 305, 822
Ghanaraj v. Mt Tapibai, 824
Ghansham Singh v Badiya, 787, 790
— Das V. Gul^bi Rai, 911
I Ghanshyam Das v, Ragho Sahu, 958

— Vishnudas v, Laxmibai, 283.
Gharibullah v Kholak, 298, 308, 340, 429,
448, 468, 470, 476.
Ghasiram v Otla Gaurai, 401
Ghasitey Mai v Harprasad, 494.

Ghasito V Umrao Jan, 73
Ghazi V Sukru, 147, 149
Ghelabhai v, II deram, 946.

Ghirdharee v Koolahiil, 77
Ghisiawan Pande v, Mt Raj Kumari, 793,

794, 813.

Ghulam Khoja v Shivlal, 420, 427.
Ghulam Mohammad v Sohana Mai, 393.
Ghumna v Ramachandra, 872.

Gilchrist, Ex parte, 457. *

Girdharee Lall v Kantoo* Lall, 416, 419,
423, 429, 430, 440, 465, 509, 515.
Girdhari Lai v Ki«^hen Chand, 450

— — V Mehr Din, 485

— — V. Ram Lai, 919

— Lall V Bengal Govt , 47 49, 630,

687, 688.

Girdhar Lai v, Bai Shiv, 443

— — r. Mamkamma, 957
Gireeschandra v. Rabindranath, 71.
Ginanna v. Honamma, 830, 831.

Ginappa v. Ningappa, 261
Ginbala v, Srinath, 792, 809

Girija Kanta v Mohim Chandra, 390, 497.
Ginjanand v. Sailajanand, 929
Ginowa v Bhimaji Raghunath, 211
Gins Chandra Saw v, Upendra Nath, 943.
Girish Chunder r. Abdul Salam, 298.

Girja Bai v. Sadashiv, 49, 530, 559, 560,

573.

Girjesh Datt v Datain, 869
Girraj Baksh v. Kasi Kamid, 308.
Girwurdharee v. Kulahul, 346.

TABLE OF CASES.

XXXVII

<^iyana Sambandha v, Kandasami, 687,688,
917, 918, 932.

^^nanaLhai r. Srinivasa, 444, 949, 957.
Cnanamuttu v, Veilii Kunda, 555.

Cnana Sambandha v. Velu, 935, 941, 942,

944.

•Cobardhan v. Sheo Narayan, 308.

Dass V. Jasadamoni Dass«^i, 102.
Goberdhan v, Ritu Roy, 957.

Gobind V. Lakshmi, 781.

— V. Mohesh, 694, 701, 709, 710.
Gobmdamani v, Shamlal,

•Gobind Chimder v. Ram Coomar, 388, 391
— Diibey v, Parameshwar, 382.

— Krishna v, Abdul Qayyam, 660.

— Kumar v, Debendra Kumar, 915.
— Narayan v, Shyamlal, 288.

Gobindo v. Woomesh, 701, 709.
Gobindonath v. Ramkanay, 278.

<7obin(l Ramaney Das v, Ramcharan, 942.
•Gohordhan v. Sm. Rai Kessori, 953.
GocooJanund v. Wooma Dace, 242, 281.
Godaveribai v. Sagunabai, 830.

Gojabai v. Shaba] irao, 47, 52, 133, 629,

757, 760.

Gokalchand v. Hukumchand, 368, 370, 391.
Gokibai V, Lakhmidas, 830, 834.

Gokool V, Etwaree, 387.

— Nath V. Issur Lochen, 871, 917,

921.

Gokulananda v. Ishwar Chotrai, 813.

Golab Kunwar v. Collector of Benares, 688,

832.

‘Goldb Singh v, Kurun Singh, 817.

Golak Nath v Mathura, 520.

Golam Abdin v Hemchandra, 313.
Golandmoni v. Shamlal, 786.

Goodman v Saltash Corporation, 891.
Goolab V Phool, 615, 878
Gooroobuksh v. Lutchmana, 770
Gooroochurn r. Goluckmony, 361, 374, 378,

379.

Gooroopersad v. Seebchunder, 548.
Gooroova v Narrainsawmy, 883.

Gopal V. Kenoram, 577, 578
— V. MacNaghten, 388.

— V. Vishnu, 228, 250, 251, 273
Gopalakrishnan v, Venkatanarasa, 143, 190,

476.

Gopal Anant v. Narayan, 202.
Gopalakrishnayya v Gopalan, 455
Gopalam v. Venkataraghavulu, 190, 262,

526.

Gopalanair v Raghavanair, %7, 974.
Gopalasami v. Arunachellam, 360, 538, 649,

822, 823.

— V. Chinnasami, 362.

Gopalayyan v, Raghupatiayyan, 70, 245,

290.

Copal Chand v, Babu Kunwar, 482.

— Chandra v. Kadambini, 829.

— — V, Kartick Chandra, 944.

— — V. Ram Chandra, 755,

762.

Gopal Chandra i». Surendranath, 799
— Chunder v. Haridas, 710.

— Das V. Badrinath, 386, 389.

— — V. Sri Thakurji, 800, 802,

— — V. Tupan Das, 427.

— Doss V. Nurotum, 78.

Diitt V. Gopal Lall, 355.

— Han V. Ramakant, 845.

— Lall Sett V. Puma Chandra Basack,

924.

— Naihar Saffray v. Hanmanth, 57,
173, 246, 255.

— V. Raghunath, 851.

— Ram V. Dharkeshwar Pershad, 388.
— Rad V. Narasinga, 314.

— Shndhar v. Shashcebushen, 932.

• — bingh V. Bhcekunlal, 355

Gopalrav v Trimbakrav, 845.

Gopee V. Rajkristna, 877.

— V. Ryland, 389.

— Kishen v Hemchunder, 390.

— Krist V. Gunga Persaud, 377, 460,

463 951.

— Lai V. Mt. Chandraole, 202, 214,

%

Uopeenath Chowdhry v. Gooroo Das, 926.
Gopi V. Maikande, 953
— V Mt. Jaldhara, 353, 903
Gopikabai v. Dattatraya, 835.

Gopi Krishna v Mt Jaggo, 71, 73, 178,

179.

— Mohun r. Bepin Behari, 925.
Gopinath v. Bhagwat, 958.

— t;. Mt Kishni, 249.

Gopii V. Sami, 922.

Cora Chand v. Makhan Lai, 938.

Gordan Das v. Harivalubh, 298
Gordhan Das v. Bai Ramcoover, 597, 865,

868, 870.

— — V Chiinni Lai, 918, 921, 926.
Gordon v Cordon, 905.

Gorishanker v. Official Receiver, Delhi,

455, 458.

Gosavi Shivgar v. Rivett Carnac, 903.
Gossain v. Bissessur, 940.

Gossamee v. Ruman Lolljee, 944.

Goiira V. Gujadhur, 299, 300
Gouranga Sundra Mitra v. Mohendra, 377*
Goui»bullub V. Juggenoth, 257.

Goureervath Collector of Monghyr, 473.
Gourhari r. Shy am Sunder, 569.
Gounshankar v. Keshab Deo, 579.

Gouri Shunker v. Maharajah of Bulram-
* pore, 371.

Gourmonee r. Bamasoonderee, 302.
Government of Bombay v. Ganga, 187.
Govinda v. Krishnan, 407.

— V. Thayammal, 818.

— Kuar V, Lai Kishun, 954.
Govindachandra v. Radha Kirto Das, 96,

378.

Govindan v. Kunnappu, 986.

— Nair r. Kunju Nair, 984, 985.

— — i;. Madhavi, 970, 971.

XXXVIII

TABLE OF CASES.

Govindan Ndir v Narayanan Nair, 977,

984

— — V Sankaran, 972, 973.
Govind Annaji v Tnmbak GovinJ, 523.
Govinda Panikkar v Kathiyayini, 980.

— — V Nani, 987
Govindaraja Pillai v Manjjalam, 896.
Govindarajiihi v Devarabotia, 143, 476
Govindayyar v Doraiswaini, 252, 253
Govindbhai v Dahyabai, 898
Govind Das v Mahalukshiimee, 615
Govind Krishna v Sakharam, 419
Govindmani v Shamlal, 816
Govindnath v Gulalchand. 210
Govind Prasad, In re, 299

— V Shivlinga, 800

— — T’ Rindabai, 254

— — r Shanti Swamp, 362,

376

— Ram V Pi rand it ta, 306
— Ramji V Sdvitri, 758
— Rao V Rajabai, 360, 541
Govindram v Naltii Lai, 4S8
Greedharee Nimdkishore, 919, 940
Greendcr Chunder v Mackintosh, 443
Gregson v Aditya Deb, 308
Grieves v Rawley, 670
Grose v Amirtamayi, 772, 815
Guddatti Reddi v Ganapali, 71, 292
Gulabbhdi V Sobanodasji, 918
Gulab Chand v Fiilbai, 142, 144
Gulabdas v Collector of Surat, 371
Giilabdas v Manohardas, 944
Gulappa 7’ Tayawd, 661, 742, 767
Gulbai & Lilbai, In re, 300
Gumanan v Jabangira, 813
Giinaji V Ramchandra, 510
Giinamoni v Debi, 761
Gnndappa v Narasappa, 191
Gundayya v Shnniwas, 493, 497, 560
V Siddappa, 394
Gunesb v Moheshur, 77

— Chunder v Nilkoiniil, 631
Giinga V Shiimboonath, 705
Gungamma v Chendrappa, 300
Gunga Prasad v Ajudbia Pcrshad, 354
Gungaram v Tappet , 878
Gungo Mull r Bunseedhur, 353
Gum V. Moran, 389.

Gunjeshwar Kunwai t' Durga, 726, 806.
Gun Joshee v Siigoona, 615
Gunjra Kuar v Ablokh Pande, 298.
Gunnaiyan v Kamakshi lytr. 372
Giinni V Dalcband, 404, 429
Guntur case, see Vellanki v Venkatararaa.
Gur Dayal v Bhagwan Devi, 757

— Dayal v Kaunsilla, 839, 840, 841

— Nanak v, Jai Narain, 808.

— Narayan v. Sheolal, 803, 949, 950, 953,

958.

Guran Ditta v. Pokkar Ram, 402.

— — V, Ram Ditta, 951

Curlingapa v, Nandapa, 501, 505.

Gurlingappa v Saburamappa, 499

Gurmukh v Shiv Ram, 395

Gurmiikh Singh v Mt liarbans, 189.

Guropada v Mon Mohun, 944

Gursarn Das v Mohunlal, 412

Guru Dm v Rameshwar, 427, 451

(riiru Gobind v Anand Lai, 607, 614, 694,.

695, 696, 701, 709, 710, 712.
j Gurulingaswami v Ramalaksbmamma (see
Sree Balusii » case) , 240.
I Gurumurthi v Gurammal, 353

I Gurumurthi r Subrabmanya, 432

I Gurunathan v Raghavalii, 412

I (birundnarain v Lnund, 77
' Gurupada v Manmohun, 915

I Gurusami r (Jiinna Mannar, 419

' — V Ganapathia, 467, 485

I — Pandian v Pandia Chinna, 854,

j 858

I Giinisbidappa i Parwattwa, 834, 836
^ (Turiiswamy v Budhkharn Lai, 313

I Guriiswami Nadai v Gopalasami Odayar..
! 450, 485.

— -- V Irulappa Nadar, 102.

Gurnvappa v Thimma,‘^451

j Ilaiman r Koomar, 209
I Hajee V lldjee, 981

Hajet Abbot) Bucktr v Ebrabim, 100.
Ismail's Will, 100
— Oosman v Ilaroon, 100
— Saboo Sidit k v Ally Mahomed, 100,

443.

I Haji Sabot) ^ltll^k v Ayeshabai, 831
Hakeem c Beejoy, 956
Hakim Lai v Ram Lai, 506
Haidar v Mallick, 576
Hall 1 ' Knight and Baxter, 887. ®

Hamidan Bibi v Nanhe Mai, 313
Hanam Gowda v Irgowda 278
Hancock v Peaty, 153
I Hanmandas v Valabhdas, 430, 500, 502,

I 574.

1 Hanmant v Ganesh, 408, 412, 419, 436.

I — V Krishna, 278
Hanmantapa t; Jivubai, 464
Hanmant Ramachandra v Bhimacharya,
202, 533, 883, 884.
Hanso Pathak v Harmandi, 371
Hansraj v Khushal Singh, 481
— V, Mt. Somni, 519, 820
Hanuman Kamat v Hanuman, 517
Hanuman Prasad v Mathura, 388
Hanumantamma v. Rami Reddi, 263, 296.
Hanumant v Sonadhari, 415, 477
Haragouri v Ashutosh, 378.

Hara Kumari v Mohim Chandra, 898
Haran Chunder v Hurroo Mohan, 247.
Harbaj v Gumani, 68
Har Bhagwan v, Hukam Singh, 729.

Hardei v Bhagwan Singh, 806.

TABLE OF CASES,

XXXIX

Hard wan v. Gomi, 298, 867, 881.

Harendra Narain v. Moran, 308, 389.
Harendraiftirayan’s goods. In re, 771.

Harey Harey Sinha v. Han Chaitanya, 385.
Hargobmd v. Dharam, 822, 823.

Hargovind Singh v Collector of Etah, 846,
847, 853, 857.

Hari v. Bajrang, 781

— V. Narayan, 314

— Annaji v. Vasudev Janardhan, 622
Haribaksh v. Babulal, 356, 568, 569, 572
Haribhai v. Mat bur Lallu, 666
Haribhat v, Damodarbhat, 742, 767.

Haridas v Baroda Kishore, 843

— V. Cham Chundra Sarkar, 943
— V Lalhibhai, 454

— V Manmathanath, 247, 255, 284.

V Prannalh, 570
— V Ramdas, 939

Handasi v Bidhiimnkhti, 795

— • V. Secretary of State, 919, 945

— Narayandas v Devkiivarbai, 360
Harigir v Anand, 96.

Han Govind v Akho^r Kumar, 957.

Harihar v Bajrang Bahadur, 582
— V Lachman, 487

— V Mathura, 298

— V Ram Daur, 160, 161, 631
— V Udai Nath, 794

— Prasad v Bholi, 663
Hari Kishen v. Kashi Pershad, 793, 795,

796

Harilal v Bai Manjoola, 919
— V Bai Mam, 301, 883.

— V Gordhan, 310.

Han Mohan v Mohini Mohan, 306.

Hari Mohun v Sourendra Mohun, 403,

452.

— Narain Das, In re, 299

— Nalayan Canpatrav, 571

— — V, Vitab, 653.

— Nath V Mothiirmohun, 807, 810

— Partab v Raghuraj Kuar, 834

— Ram V Madangopal, 868

— Ramayya v Venkatachalapati, 221,

222, 226, 230,

— Saran Moitra v Bhiibanesvari Debi,

315, 431.

Harischander v. Mt Nanki, 445.

Harish Chandra Roy v, Atir Mahmud, 689,

733.

Hari Singh v Pritam Singh, 564

— Shankar v Ram Samp, 397

— Vithal V Jairam, 449, 450.

Harjivan v Naran, 865.

Harkesh Singh v Hardevi, 558
Harkishan v. Partap, 559, 565
Harkishandas v Bai Dhanii, 871.
Harkishore v. Guru Mia, 958.

Har Lai r. Han Singh, 814.

— Mitra v. Raghubir, 781, 796.

— Narayan Mitra v Suria Kunwari, 925.
Harnabh r. Mandil, 70, 210, 779.

Harnam Singli v. Jagin Singh, 470, 478.
Harnarain v. Bishambar, 545.

Haroon Mahomed In re, 100, 392, 489.

Har Partab v Thakuram, 830.

Harprasad v Kewal, 178.

— V Harihar, 403.

Har Saran v Nandi. 656.

Harwood v Baker, 881
Hasan Jajar v Muhammad Askari, 362.
Hashmat Ah v Mt Nasibunnissa, 71
Hdssan All v. Nagammal. 248.

Hayes v Harendra, 786

Haynes, In re, Haynes v Carter, 174.

Hazara v Di^a, 485

Hazanmull Balm v. Abani Nath, 356, 510,

511.

Hazura Singh r Kishan Singh, 447
Hemadrmath v. Ramani Kanta, 522.
Hemanginee v Jogendro, 953
Hemangini Dasi v Kedarnath, 545, 547,

723, 743.

— — V Nohin Chand, 891,

904, 926.

Hem Chandra v. Hemanla Kumari, 570
Hef^chandra v Motilal, 377, 378
Hemchunder v Sarnamayi, 799
Hem Chunder Ghose v Thako Mom Debi,

499, 506

Hemendranath v Jnanendra, 71, 275
Hemluta v. Goluck Chunder, 707
Hemraj i; Nathii 307. 309, 470, 475, 480,
481, 788, 931.

Heneower v. Hanscower, 73, 292.

Hermann v Charlesworth, 144
Hilal Singh v Udesingh, 873.

Hill IK Crook, 286.

Himmat v. Bhawani, 361, 442.

— V Dhanpat, 805, 806.

Himmatsmgh r. Ganpatsingh, 824, 825
Himnath Bose, In re, 304
Hira V. Buld, 597.

— u. Hansji, 133, 140.

Hirabai v Jan Mahomed, 868.

Hirabharthi v Bai Javor, 269.

TTira Lai v Parmeshar, 436.

Hiralal v. Mt Jumna, 952
Hiralal v Sankar Lai, 354, .547
— Marwari v. Chandrabali, 411.

— 'Singha V, Tripura Charan, 763
Hira Naikifi v Radha Naikin, 73, 286, 292.
Hira Singh v Mt Manglan. 348. 559, .577.
Hiranath v. Baboo Ram, 70. 615, 858.

— V Ra^ Naiayan, 658.

Iliran Bibi Sohan Bibi, 807
— Devi V Chanan Shah, 298
Hiran Singh r. Gunga Sahai, 726.

Hitendra Narayan v Sukhdeb Prasad, 315,

479, 509

— Singh V, Mabaraj'a of Dar-
bhanga, 908.

Honamma v Timanna Bhat, 80, 831.
Honapa v. Narasapa, 957.

Honooman Dutt Roy v. Bhagbut Kishen,

514.

XL

T4BLE OF CASES.

Hooglv V Kishnanund, 939
Honlal i Munman Kunwar, 380, 386, 435.
Hormui*ji Framji, in the matter of, 945.
Ho^banna v Devanna, 544

Allkhan v Bhagavan, 930
Houghton r Houghton, 887
Howard v Peslonji, 69
Hridoy Kant v Behan Lai, 743
Hubraji v Chandrahali, 746
Hiirhrao Timmaji r Bhimrao Guruiao, 281.
Hnebut Ran v Govmdrao, 248
Hiikiimchand r Sital Pra^^ad, 741, 756,

779

Hulodhiir i Gooroo Dosq, 3^8
Humphreys r Polak, 302, 303, 301
HlInoomanper^and v Mt Babooee 307,
308, 310, 416, 470, 472, 484, 485, 786,
787, 790, 793, 930, 980
Hunsapore case (see Beer Pertab r Maha-
rajah Rajender)

Hiir Dyal Nag v Roy Kristo, 287
Kishoie V Joogiil, 388
Hiiradheen v Muthoranath, 287
Hurbojee v Hurgovind, 416
Hnrdey Narain v Rooder Perka^i, ^425,
430, 431, 435, 498 502
Huree Bhaee v Nuthoo, 184, 187
Hun Doyal t; Gnshchiindra, 741
— Das V Bama Churn, 700, 709, 710
Hnrkoonwur v Button Baee, 187
Hurodoot V Veer Narain, 510, 511
Huro Soondree i’ Chiindeimonv, 240
Hurpurshad r Shoo Dayal, 70 71, 362,
364 371 865

Ilurnshchunder t Mokhoda, 556
Hurronath Roy v Riindhir Singh, 172,
487, 789, 790

Hurrosoondery i Raje‘-^uree, 617
Huriy Churn v Nimai Chand, 172, 188
Hurrydoss v Rungunmonev, 770, 815
Hurrydoss v Uppoornah, 770, 815
Hurrymohun v (Jonesh Chunder, 788, 792
— V Shonalun, 747, 755, 762.
Hurst V Mussoone Bank, 744
Husaini Begam v Md Rustam \li, 189.
Hushen v Basappa, 544
Hussain Beebee t Hus‘'ain Shf rif, 928
Hussembhoy r Ahmedbhov, 903.*

Hyde v Hyde, 102 * « •

I

Ibrahim v Sada Bibi, 88i

Ibrayan Kunhi v Komamutti Koya, 984

Iburamsa Rowthan v Thirumalai Thiru-

venkata, 574

Ichharam v Prumanund, 878.

Ilata V Narayanan, 827.

Imam v. Balamma, 838.

Imambandi v Kumleswan, 956.

— V Mutsaddi, 310
Imbichi V. Pennu, 652.

— Beevi i Raman Nair, 969

Imperial Bank of India v Bengal National

Bank, 865.

r Mt. Maya Devi,

516.

i, Veerappan, 307.

Tmrat Bai v Phula, 789

Jnayet Husain t Fai/ Muhammad, 946.

Indar Bux v Shoo Narcsh, 781

— Chunder Singh r Radha Kishore

Ghose, 310, 312.
Indaijit V Jaddii, 794, 797, 803
Tndar Kiiai i Lalta Pia'^ad, 788
Indarsmgh v Harnamsingh, 545
Indtr Pal r Imperial Bank, 422, 432, 436.

— Singh V Thaknr Smgh, 174
Inderun i' Rarnasawmy, 174, 178, 179.

Indi r (^hania, 147 301, 657

Indira Ram v Akshay Kumar Ghose, 896,

910.

Tndoji V Ramachandra, 357
Indrabai r Makarand, 825
Indramoni v Behan Lall, 252
Indra Narain v Sarbasova, 801
Indran Ramasw'ami ^ Anthappa, 306.
Indromonee i Suroop, 388
Indu Bala t> Lakshmmarayan, 452

— — Da‘'i V Panchumani Das, 830.
Inspector Smgh v Kharak Singh, 395, 474.
Inuganti Venkaframa v Sobhanadri Appa

Rao, 312.

Iqbal Smgh v Ja^^mer Smgh, 428, 429.

Ishakalli V Thakur Prasad, 94

Ishan r Biik<-h Mi, 810

Ishani Dasi i Gane4ichandra Rakshit,

481.

I«har r Surat, 286
Ishrappa i’ Krishna, 500, 503, 574
Ishwar Dadu v Gajabai, 227
Ishwan V Babu Nandan, 781, 787
— Bhubanesvan t’ Brojo N,ath, 915,
923, 924, 925.
— Prasad v Rai Han Prasad, 88, 95,
246, 247, 692, 763.
Ishwar Narain r Janki, 813
— Shyam Chand v. Rani Kanai
Ghose, 935.

Ismail V Fidayet, 76
— Xlussajee v Hafiz Boo, 951, 952
Isree Prasad v Nasib Kooer, 355, 544, 549.
Isri Dutt V Himsbutti 772, 775

— Smgh V Ganga, 68
Issur Chunder v Gopal, 957

— — V. Ragab, 316.

— — V Ranee Dossee, 727.
Iswaran v. Vishnu, 988.

J

Jaafar Smgh v Aji, 941.

Taddu Padhi v Chokkapu Boddoo, 508.
Jado V Mt. Ranee, 509.

Jadoomonee v Gungadur, 374
Jadosingh t;. Nathusingh, 480, 787.
Jadunath v. Rup Lai, 957.

TABLE OF CASES.

XU

Jadu Nath v. Sitaramji, 916, 923, 924, 925,

927.

— Kuar V. Bisheshar, 582.

Jafri Begum v Syed Ah, 554.

Jagabai v. Bhukhan Das, 430.

Jagadamba v Narain, 364, 561, 852, 853,

859.

Jagadambika v. Kali Singh, 428.

Jagadat Singh v Kanhaiya Baksh, 787.
Jagadmdra Nath v, Hemanta Kuman, 923,
924, 927, 929, 944

Jdgannadha Row v. Rama Dass, 935.
Jaganadha Rao v. Ramanna, 362, 501, 566,

567.

— — V. Ramayamma, 301.
Jagannadham v. Vighnesvarudu, 771, 776,

783, 819.

Jagannath v Basist, 416.

— V Bidyanand, 689.

— V. Champa, 614, 620.

■ — V, Damodhar, 819

— V. Gurcharan, 787.

— V Jugal Ki shore, 412.

— V, Kiinja, 880.

— r. Kunj oehari, 213, 905.

— V Mannu Lai, 402

— V Narayan, 139, 756, 758.

— V Ranjit vSmgh, 755.

Jagan Nath v Sn Nath, 479.

Jagannatha v Visvesam, 438.

— Pra«-dd V Chunnilal, 298, 299.

— — V, Ranjit Singh, 49, 133,

291, 944

— Ramji, In re, 299.

Rdo t Kambharosa, 214

-- Row V Seshayya, 420,

Jagar Nath v Lalta Persad, 312.

Jagarnath Gir v. Sher Bahadur, 86, 651,

691.

— Prasad v. Suraj Deo, 653, 775,
• , 778, 885.

Jagat Narain v. Mathura Das, 309, 470,
474, 480, 788.

Jagdeo Singh v. Mt. Raja Kuer, 778.
Jagdish V, Sheo Partab, 35.

— V. Punamchand, 268.

Jagernath v. Jai Nath, 388.

Jagesar v. Deo Dat, 494, 516.

Jaggamoni v. Nilmoni, 923.

Jagga Mohiin v. Saumcoomar, 88.

Jaggo Bai v. Utsava Bai, 811.

Jagmohan v, Prag Ahir, 480.

Tagmohandas v, Allu Maria, 911.
Jagobondhu v. Rajendranath, 544, 545.
Jagon Ram v. Mahadeo Prasad, 298, 306.
Jag Prasad Rai v. Mt. Singari, 579.
Jagrani v, Gaya, 818.

Jagtar Singh v, Raghbir, 357.

Jagubai v. Kesarlal, 666.

Jagwanti p. Udit Narain, 800.

Jai Bansi v. Chattar, 945.

— Dayal v, Narain Das, 371.

— Kishen v, Ramchand, 451.

— Krishna v. Bhuk Lai, 931.

Jaikumar v, Gauri Ngth, 413.

Jai Nand v. Paran Dei, 829.

— Narain v, Baijnath Rai, 559.

Jainarain v, Hira, 653.

Jai Narain v. Mahabir Prasad, 428.

— — V. Munnilal, 653.

— — Lai V, Bechoo Lai, 312.
Jainarayan v, Sonaji, 430, 439.

Jai Prakash r. Bhegwandas & Co , 357.

— Ram V. Atma Ram, 571.

— — V. Bhagat Ram, 781, 784.

Jairam v. Joma Kondia, 431.

— V. Kuverbai, 887, 891, 892.

Jai Ram v. Musan Dhami, 208.

Jairam v. Ivathu, 526, 527, 544.

— Luxmon, In re, 299.

Jai Singh V. Bijai Pal, 246, 248.

Jaiwanti v. Anandi, 756.

Jamal Saheb v Miirugayya, 934.
Jambagathachi v. Rajamannar, 298, 299.
Jamiat Rai v. Mt Malan, 840, 842.
Jamiyatram v Parbhudos, 443
Jamman v. Tiloki, 811.

Jamnabai v. Balakrishna, 840.

— V. Dharsey, 921.

~ V. Khimji, 659, 918, 919.

— V Raychand, 243, 267.

— V Vasudev, 545.

Jamna Das v Machila, 840.

— — V Cordhandas, 883

Jamnaprasad v Mt. Durgadei, 816.

Jamna Prasad v Ram Parlap, 354, 663.
Jamoona Dassi v, Bamasoondari, 205, 207,
214, 288, 817.

— — V. Miidden, 416.

Jamuna Parshad v Ganga Parshad, 506.
Jamshedji Tarachand v. Soonabai, 891.
Jamwati v, Maharani, 836
Jan All V, Ram Nath, 947.

Jana v. Rakhma, 625, 681.

Janak v. Babu, 809.

Janaki v, Narayanasami, 768. 812, 814, 815,

818.

Janakiram v, Nagamony, 338, 357, 361,

903.

— V, Venkiah Chetty, 250. '
Janakiramayya v, Venkatalakshmamma,

217.

Janakifeetty v, Miriyala, 740, 742.
Janardhan* v. Gojial, 726.

— Jiu v. Khettish Chandra, 925.
Jane Turner, In the goods of, 457.

Jang Bir v, Mt. Jumna, 614, 620.
Janglubai v. J^tha Appaji, 753.

Janki v. Nandram, 355, 829.

Jankibai v. Mahadev, 431, 450.

Janki Bai v. Sundra, 52, 742, 767.

— Dibeh V, Suda Sheo, 209.

— Pershad v. Dwark Pershad, 852, 853.
Jankoo v. Zeboo, 747.

Jankubai v. Parvati, 94.

Jan Mahomed v. Datu Jailer, 100.

Janoki p. Gopaul, 243, 927, 928, 939, 940.
Janokinath p. Mothuranath, 546, 654.

XLII

TABLE OF CASES.

Jasoda v SheopersKad, 354, 579, 662.
Jasoda Sundan v Lai Mohun, 378
Jaswant v Gobind Ram, 958
— Lai V Govardhan, 911.

Jatmdra v Amrita, 267.

— V Ghanashyam, 870, 887.

— Mohan v. Ganendra, 87
— Nalh Roy v Nagendra Nath Roy,
49, 51, 601, 607, 610, 611, 670,
674, 676, 677, 678, 757.

Jatti V Ban wan Lai, 394, 568, 572, 573,

579

Javerbai v Kablibai, 891, 900, 901
Jawahar v Parduman Singh, 418, 439,

824, 840

Jawahir v Guyan, 354

— V IJdai Paikash, 429, 508.
Jawahirlal v Jaraiilal, 96, 661, 742.

Jawala Prasad v Bhmdaram, 401
Jayanti Sulihiah v Alaniehi, 782, 824, 825,
829, 837, 838, 840, 842, 843
— Narasimhan v Venkatasubbamma,

843.

Jaydiandra v Satischandra, 443
Jeebun v Ramanath, 555
Jeevkore Bhai r Krishnados«, 885
Jeewanbai v Manordas. 18
Jeewun v Mt Sona, 747
Jeka Dula v Bai Jivi, 802
Jekisondas v Ranchodas, 145
Jeot Ram Chaudhun v Mt Laiigi, 830
Jewun V Shah Kubeeroodin, 914.

Jhabbii Ram v Bahoran, 404
Jhabbii Singh v Canga Bishan, 299.
Jhandu v Tarif, 813.

Jhari V Bijai, 808
Jharula Das v Jalandhar, 938
Jhula V Kanta Prasad, 813
Jhunka Prasad v Nathii, 249, 250
Jibach Mahto v Shibshanker, 452.
Jibankrishna v Brojolal, 787
Jijoyiamba v Kamakshi, 652, 653.
Jmnappa v Chimmava, 464, 483.
Jinwarasa v Ganwantrao, 510
Jio V Rukmani, 903
Jitendranath v Lokendranath, 919
Jivabai V Vadilal, 532
Jivan Lai v Kallumal, 248
Jivani V Jivu, 245 *

Jiwan Beas v Mt Tndra'Ki ar, 96.

— Dass V People’s Bank, 451.

— Singh V Misri Lai, 796, 803.

Jiwani V, Miila Ram, 147
Jnanendra v. The Official Assignee of Cal-
cutta, 952

Jnanendranath Ray, In the goods of, 82,

89, 90, 690

Joala Prasad v Chanderiot, 562.

Jodha V Darbari Lai, 757
Jodhi Rai V Basdeo, 927
Jodoonath v Brojonath, 545, 548
Jogdamba Koer v Secretary of State, 2, 42,
56, 611, 614, 616, 617, 620.
Jogendra v Baladeo, 576

Jogendra v. Fulkumari, 545, 838.

— Chandra v Pham Bhushan, 741.
Jogendro v Nityaniind, 95, 537,-538, 649.

— V Nobin Chunder, 388.

— Deb V Fiinindro, 288.

— Nath V Jugobundhu, 570.

Jogesh Chandra v Nrityakali, 240.

— — V Prasanna Kunwar, 806.

Jogeswar Narain v Ramchund Dutt, 353,
361, 873, 903

Jogidas V Ganga Ram, 428
Jogireddi v Chinnabi Reddi, 103, 555.

Jogi Singh V Behan Singh, 315

Jogo Bandhii Pal v Rajendra Nalh, 545,.

838.

Jogiil K I shore i Shib Sahai, 531
I Johan Singh i Ilardat, 432
Joharmal v Eknath, 432
Johnstone v (jopal Singh, 374, 377, 470,.

471

1 Johiiria Bibee r Stngopal, 450, 840, 841,

I Joitaram r Ramkridma, 866, 867
Jokhu Gosain e Ganesh Singh, 515
Jone’H r Admr -Genl »f Bengal, 892
Joogal Kishore v Kalee ('hum, 447
Jorden v Money, 507
Joshy Assam, In re, 303, 305.

Jotindra Nath v Rajlakshmi, 882
I Jotismgh V Jangu Singh, 362, 376
I Jowala V Dhanim, 98
I — Ram V Harikishen, 785.

I — — tf Bhyiub C’hiindro, 216

— Chiindei i Bippio Churn, 390
■ — Deb Siirmah r Huroputty, 928

— Narain r Girish ( hiindia, 561
, — Sankari Gupta i Bharat (]handra, 506.

Joymooruth v Buldeo, 816
I Judah V Judah, 914
i Judoonath v Bishonath, 541-

— ■ V Bussunt, 747, 755 •

Judub Chunder v Benodbenary, 568, 707
I Jugadamba v Dakhina Mvihun, 290
' Jugal Kishore v Jotindra, 431, 808, 809,
' 810.
i — — V Lakshman Das, 915, 917,

I 918, 932, 947

, Jiiggernath Roy v Pershad Surmah, 943
Juggodumba t Haran, 387
Juggomohiin 7^ Neemo, 462, .544, 877
Juggiirnpet case, The See Venkayyamma
V Venkalaramanayyamma
Jiiggurnath v Doobo, 468
Juggutmohini v Mt Sokhemoney, 914,

917, 926.

Jugmohan v Sarodamoyee, 547
Jugmohundas v Mangaldas, 355, 357, 358,
368, 372, 381, 385, 460, 464, 523, 527,
531

Jullessur v. Uggur Roy, 740
Junaruddeen v Nobin Chunder, 98.
Jussoda V Lallah Nettya, 300
Juswant V Doolee, 295
Juthan Ram v, Ramun Ram, 479.

TABLE OF CASES.

XUII

Jwala Das v, Pir Sant Das, 939.

— Dei V, Pirbhu, 298
— Pimsad V. Bhuda Ram, 453.

— — V. Maharajah Pratap Udai-

nath, 510.

— — V. Protap, 494.

Jyotibai V. Lakshmeswar, 382, 385, 527.
Jyotishchandra v. Rathikachandra, 554.

K

Kabakandi v, Siva Sankaran, 969.
Kabootra v. Ram Padarth, 669.

Kachi Kaliyana v. Kachi Yuva, 834, 844,
846, 847, 849, 853, 854, 855, 857, 861.
Kahundas, In re, 953.

Kaihav v. Roop Singh, 478.

Kailas V. Bijay, 572.

— V. Jagarnath, 951.

Kailash Chandra v. Kashi Chandra, 654,

660.

Kailash Chunder v. Kanina Nath, 708, 710.
Kailasam Pillai v Nataraja, 933, 947.
Kailasanatha v. Vadivanni, 140, 141, 745,
• 772, 773.

Kajikar v. Maru, 298.

Kakerla Chukkamma v, Kakerla Punnam-

ma, 218.

Kalachand v. Jatindra, 871, 890.

Kalappa v. Shivappa, 93, 247
Kalavati v. Chedi Lai, 313.

Kalawali Devi v, Dharam Prakash, 214,

289, 290.

Kalee v, Choitun, 498.

— (thunder v Sheebchunder, 196
— Pershad v Bhoirabee, 709

— Pudo V Choitun Pandah, 95
— Siinker v Denendra, 540
Kalgavda Taranappa v. Somappa, 87, 133,

250.

Kali Cftaran v Bageshara, 813.

— Das V Bijai Shankar, 274, 276.

— Komiil V Uma Sunker, 257

— Krishna v Raghunalh, 854

— Prasad v Ram Golam, 900

— — V. Chandrika Prasad, 363.

— Shankar v. Nawab Singh, 494
Kalian Rai v. Ramchander, 667, 683, 684.
Kahcharan v. Hudai Narain, 402

— t; Piari, 746, 811
Kalichundra v Rajkishore, 388
Kalidas v, Kanhaya Lall, 521, 866.

Kali Das v. Krishan Chandradas, 461, 533,
534, 552, 553, 597, 730, 731, 732
Kalikrishna v. Makhanlal, 944
Kalimata Debi v, Nagendra, 947.
Kalimuthu v, Ammamuthu, 84, 631, 636
674, 675, 678.

Kaliparshad v. Ramcharan, 531
Kaliyanasundaram v. Subba, 653.

Kallapa v. Venkatesh, 498, 503.

Kallati Kunju v. Palat Erracha, 972.
Kalliani Amme v. Govinda Menon, %9,

977, 978.

Kalliani Amma v, Sankaran Nair, 979,

986.

Kallu V. Faiyaz Ahkhan, 792.

Kallu V. Kauselia, 822.

Kallyaneswree v Dwarkanath, 826.

Kdllyani v. Narayana, 866, 980.

Kally Churn v. Dukhee, 172, 184.

— Prosonno v. Gocool Chunder, 271,

278.

Kaloo Singh v. Sunderabai, 477.
Kalpagathachi v. Ganapathi, 839.

Kalu V. Barsu, 482, 495.

— V. Kashibai, 825, 829.

Kalyanadappa v, Chanbasappa, 291.
Kalyanasunaaram v. Karuppa, 279, 513,

867.

Kalyanasundaram v, Subba, 653.

Kalyanji Vithaldas v I. T. Commr. of
Bengal, 339, 352, 361, 720.
Kamakhya v. Harichurn, 769.

Kamakshi v Chakrapani, 464
— V Poochammal, 818.

— Ammal v Chidambara, 540.

— — V. Krishnammal, 840.

Kamala v. Bhagirathi, 753.

Kfmalabai v, Pandurang, 864, 867.
Kamaladevi v. Gur Dayal, 955.

Kamala Kant r. Madhavji, 373.
Kamalakshi v. Ramaswami, 73, 74.
Kamalam v. Sadagopa, 74.

Kamal Kutti v. Ibrayi, 979.

Kamaraju v Secy, of State, 313.

— V. Venkatalakshmipathi, 806.
Kamavadhani v. Joysa, 770, 786, 816.
Kamawati v. Digbijai Singh, 103
I Kamayya v. Chinna Sooranna, 222.

— V Mamayya, 957.

Kamcswar v. Run Bahadur, 473, 786. 791.
1 Kameswara Sastri v Veeracharlu, 143, 171,
; 190, 381, 475, 476, 526, 537, 821

I Kamcswaramma ik Venkatasiibbarao, 411,
i 439, 441.

I Kamineymoney, In the goe>ds of, 763.
j Kamini Dossee v. Chandra Pode, 829.

— Mohiin V. Nibaran Chundra, 388.
Karnla Prasad v. Lalji Prasad, 191, 784

— — V. Miirli Manohar, 47, 53,

293, 758.

— • — V, Nathiino. 488.

Kamta Prasad* i>.* Dingat Dat, 557.

— — V Durga Dat, 479, 487.

— — V Indomati, 958.
Kamulammal r. Visvanathaswami, 539, 649,

• 650, 856.

Kanahi v. Biddhya, 153, 302, 303.
Kanakamma v. Venkataratnam, 442.
Kanakammal v. Ananthamathi Ammal, 757.

— v. Bakthavatsalu, 909.
Kanakasabhaiya t‘. Seshachella, 491.
Kanayalal v Lalchand, 942.

Kanchumarthi v, Kanchumarthi, 288.
Kandarpa Mohun v. Akshay Chandra, 901,

944 .

— Nath r. Jogendra, 519.

XLIV

TABLE OF CASES.

Kandasami v. Akkammal, 813.

— V. Doraisami, 558, 572.

— V Munisami 925.

— V Muriigammal, 827, 831.

— V Velayutha, 502

— Asari V Somaskanda, 381, 488,

489, 516.

Kandabwami v, Chinnammal, 230
V Kanniah, 144, 145.

— V Kuppu, 427.

— V Venkatarama, 500, 574

Kandhialal v Mima Bibi, 485.

Kandum Venkitaswami v Baligadii, 576
Kanemar Venkatapayya v Knshnacharya,

412.

Kanhai Lai ^ Bnj Lai, 806

Ram V Mt Aniri, 746
Kanhaiya v Dabha Bari, 455
Kanhaiya Lai v Gaiira, 545

— — V Hamid All, 927

— — V Kishori Lai, 805, 806

— — Sahu V Mt Saga Kiier,

295

Kanhaya Lai v Devi Dayal, 337, 398
Kanhi/ak v Manobiir, 954
Kanhya v Radha Churn, 288
Kanhya Lai v Mt Hira, 908
Kaniz i Wall Hllah, 958
Kannammal v Ramatilakamrnal, 374
— V Virasami, 290

Kannan r Nilakanden, 942
Kanna Panikker v Nanjan, 986
Kanna Pisharodi v Kombi Achen, 520
Kanni Ammal v. Ammakanmi, 653, 654,

660

Kan''hi Ram v Chet Kaiir, 818
— — V Dunichand, 572

Kanth Narain v Prem Lall, 507
Kanthu v Vittamma, 353
Kanti V All -1 Nabi, 554, 806, 898
— Chunder v Bisheswar, 473
Kanukurty v Venkataramdas, 507
Kanungoe Knshen v Romesh Chunder,

313

Kanyaka Parameswaramma v Venkata-

ramiah, 455

Kanyalal v. Banwan, 568.

Karali v Asutosh, 727.

Karam v Surendar, 482, 497
Karamchand v. Ram Labhaya, 468.

Karam Kaur v. Matwal, 447
Karam&i v Karsondas, 286, 905.
Karansingh v, Bhup Singh, 432.

Karan Singh v. Budh Sen, 557, 572.

Karat tole Edamma v Unni Kannan, 388.
Karbasappa v. Kallava, 836.

Karibasaka v, Karibassana, 144.
Karimuddin v. Gobind Krishna, 441, 787.
Kariyadan v. Kayat Beeran, 305.

Karmali v. Rahimbhoy, 314.

Kamavan v Govindan, 985.

Karpan v. Veriyal, 416, 419.

Karri Bapanna r. Yeramma, 315.
Karsandas v. Ladkavahu, 210.

Karsondas Dharamsey v Gangabai, 352,.

353, 360.

Karti Chunder v Bisheshwar, 308'

Karima v Jai Chandra, 708
Karunakara v Kutti Kiishna, 978, 982
Karuppa v. Alagii, 769
— V Arumuga, 917

— V Kumarasami, .538

Karuppai v Sankaianarayanan, 353, 354,
360, 366, 597, 663, 756.
Kariippan Goundan v Mudali Goundan,

800

Karupannan v Bulokam, 537, 647
Karuppayee v Rama^^wami, 650, 651
Karuppia Pillai v Irulayee, 802
Kasee Dhoolubh v Rulton Baee, 187
Kaseeram v Umbaram, 187
Kashee Mohun v. Raj Gobind, 701, 709
Kashcepershad v Bimseedhiir, 263
I Kashibai v Moreshvar Raghimath, 619,

I 668, 681,

I — V Tatya, 243, 276
' Kashichunder Sen, In the matter of, 303.

1 Kashmath v Gangiibaif 927, 943, 946
I Kashi Prasad v Inda Kiinwar, 777
I Kashishuree v Greesh Chunder. 259
j Kasi V Biichireddi, 443

^ Kasim Saiba v Sudhmdra, 938
I Kasinath v Sadasiv, 434
I Kasi Visveswara v Varaha Narasimhan,

; 357, 505, 722.

1 Kasturbai v Shivajiram, 830

1 Kasturchand v Mt Wazir, 867
Kastun v Chiranji Lai, 148
— V Panna Lai, 148
Katama Natchiar v Rajah of Shivaganga,

‘ 288, 339, 371, 555, 573, 596, 615, 616,

720, 807, 847, 854, 857, 858, 859.
Kateeran v Mt Gendhenee, 188
Kathaperumal v Secy of State, 957f
— V Venkabai, 'o53, 654.
Kattama Nachiar v Dorasinga Tevar, 187,
660, 662, 814, 815, 859.
Kaulesra v. Jorai, 299, 302, 303
Kaveriammal v. Subba Ayyar, 839.

Kawal Narain v. Prabhu Lai, 561.
Kayarohana Pathan v. Subbaraya, 726,

727 .

Kayastha Patasala r. Mt. Bhagwati, 875,

891, 904.

Kazim All v Sadiq Ali, 389, 529.

Kearley v. Thomson, 957.

Kedar Nath v, Amrita Lai, 709, 710

— — V, Gaya Nath, 903.

~ — V. Haridas, 694, 701, 702, 708,

710.

— — V. Hemangini, 824.

— — V Jagarnath, 930

— — V. Rathan Singh, 371, 561,

562.

— — Dutt r. Atul Krishna, 918.
Keerut v, Koolahul, 766.

Kehri Singh v, Chunnilal, 435.

TABLE OF CASES.

XLV

Kenath Puthen v, Narayanan, 969, 977,

983.

Kenchava Girimallappa, 86, 87, 152, 553,
623, 679, 680, 728, 729, 757.
Kerri Kohtani r. Moniram, 58, 94, 207,
654, 655, 730, 766, 770.
Kerwick v Kerwick, 950, 951.

Kesabram v Nand Kishore, 568, 707.
Kesarbai v. Shivasangji, 234.

Kesarsingh t;. . Santosh, 400.

— v. Secy, of State, 159, 161, 167,

223, 631, 632, 638, 639, 642.
Keshav Rao v, Sadasheorao, 96.

— V, Bai Gandi, 72.

— V, Govind, 207.

— V. Maruti, 775.

Keshavbhat v. Bhagirathi Bai, 927.

Kesho Prasad v Sheo Pargash, 814.

Keshow Rao v, Naro, 139, 410.

Keshri Mull v. Sukan Ram, 954.
Keshiibram v Nand Kishore, 568.
Kesserbai v, Hunsraj, 622, 629, 743, 757,

759, 760.

— v. Valab, 618, 621, 625, 626,

• 681.
Keval Bliagwan v. Ganpati, 443.

Khajeh Solehman v Sir Salimullah, 887.
Khajooroonissa v, Rowshan Jehan, 313.
Khali hil Rahman v. Gobind, 415, 419.
Khanchand v Raushan Das, 148, 191.
Khan Gul v, Lakha Singh, 313.

Kharag Narain v, Janki Rai, 494.

Kharidar v Dayakishan, 398.

Khan Muhammad v Umar Din, 814.
Khatubai v Mahomed Ilaji Abu, 101.
Khawani Singh v, Chet Ram, 794.

Khazana Mai v. Jagannath, 450.
Khemchand v, Jaswant Rai, 471.

— V. Naraymdas, 454.

Khemkar v. Umiashankar, 72, 187, 823,
• 824.

Kherodemoney v. Doorgamoney, 868.
Khetramani v. Kashinath, 829.

Khetra Mohan v. Nishi Kumar, 311.
Khettermoni v. Kadambini, 704,

Khettur v. Poorno, 645.

— Chunder v. Hari Das, 943.

Khimji V. Morarji, 870.

— Vasonji V. Narsi Dhanji, 145.
Khitish Chundra v. Radhika Mohun, 442.
KhojaKs case, 69, 100.

Khoodeeram v. Rookhimee, 689.

Khooshal V. Bhugwan Motee, 173.

Khub Lai Singh v, Ajodhya, 779, 780, 781,
782, 917, 919.

— Singh V. Ramji Lai, 286.

Khuddo v. Durga Prasad, 656.

Khudiram v. Bunwari, 188, 301.
Khuggender v, Sharupgir, 688.

Khunni Lai v. Gobind, 79, 551, 728, 777,
805, 806, 807.

Khursadji v. Pestonji, 866.

Khushalchand v. Bai Mani, 57, 147, 148,

149 .

Khushalchand v, Ibrahim, 18.

— v. Mahadevgiri, 914, 917.
Khushali v Rani, 657.

Khwahish v Surju, 297.

Kidar Nath i;. Mathu Mai, 519, 820.

Kingshi V, Kandaji, 792.

Kirpal V, Sukurmoni, 647

— Singh t Balwant Singh, 416.

Kisan V. Bapu, 661, 742, 768
Kisanji V. Lukshmi, 831
Kishan Chand r Punjab Smdh Bank, 357.
— Dpi V Mangal Sen, 190
— Lai V Lachnuchand, 306, 540, 555,

556.

— Sariip*r Bnj Raj Singh, 439.
Kishen v. Tarim 708.

K^shenchand t Narmjan, 884

Kishen Dei v Slipo Paltan. 134, 136, 187.

— Devi V Chand Mai, 792.
Kishenmunnee v. Oodwant, 277.

Kishen Piasad v. Ilari Nara>an, 380, 386,
387, 400, 435.

— Pershad v. Tipan Pershad, 431.

— Sahai V Raghiinath. 429, 481.
Kishori V Mom Mohun, 544, 545.

-®- Dubain v, Mundra, 361, 903.

— Lai V Chiinm Lai, 287.
Kizhakkumbath v, Koyambratli, 986
Kuduthi V, Madu, 655
Koer Hasmat Rai v, Sundardas, 515, 570,

574.

Koer Goolab v Rao Kiinin, 726, 813.
Kojiyadii r. Lakshmi, 627
Kolondaya v. Vedamuthii, 795
Komalangi v Sowbakiammal, 911.

Koman Nair v. Arhutan Nair, 915.

Kombi V, Lakshmi, 980, 981
Konammal v, Annadana, 364, 557, 848,

857, 859.

Kondal Rayal Reddiar v. Ranganayaki, 189,

826.

— Row V. Swamiilavaru, 733.

— — V, Iswara Sanyasi. 689.

Kondappa v. Subba, 783.

Kondi Menon v. Ahammada, 980.

Konduru Dasaratharama v, Indopr Narasa,

403

Konerrav v. Gurrav, 385, 531.
Konthalmthammal v, Thangasamy, 300.
Konwar Doprg^ath Roy v. Ram Chunder
Sen, 312, 473, 915, 925, 929, 930, 937.
Kooldeb Narain v. Wooma, 887.

Kooldeep v, Bajbunsee, 300.

Koomaraswamy Ragava. 319.

Koonwur v, Shama Soonduree, 497.
Kooverji Devji v, Motibai, 305.

Kora Shunko v. Bebee Munnee, 246.

Kota Balabhadra v, Khetra Doss, 498, 504.
Kothandaram Naidu v. Subbier, 763.
Kothandaramareddi v, Thesu Reddiar, 73,

143 .

Kotireddi v. Subbareddi, 798.

Kottala V. Shangara, 447.

Kotta Ramaswami v. Seshamma, 472.

XLVI

TABLE OF CASES.

Kottayya r. Durgayya, 515
— V Veerayya, 800.

Kounla V. Ram Hurce, 462.

Knshan r. Commr of I. T , 849
Krishna v Balaram, 565.

— V Bhaiya Rajendra, 614, 776.

— V Knshnaswami, 393, 451.

— V, Muthuldkshmi, 787

— V Paramshri, 244, 281
— V Sami, 51, 348, 532, 553, 597,

731, 732

— V Siibbanna, 531

— V Subbanna, 800

— • Aiyer v Pierce Leslie & Co , 393,

450

— Ayyangar v Venkatarama, 631,
638, 673, 67.5

— Ayyar v Balammal, 188
Krishnabai v Khangowda, 540
— V Sdwlarani, 437
— V Secy of State, 741
Krishna Bihari v. Sarojini, 611, 762.
Krishnachandra v Ralan Rampal, 307,
470, 474, 480, 481
Krishna Charan v Radhakant, 412.
Krishnagiri v Shndhar, 940 *

Krishnai v Shripati, 757
Krishnaji t' Gajanan, 571 |

-- V llanmareddi, 689, 733 i

— r Pandurang, 52 '

— V Moro Mahadev, 362, 368, 369

— V Vithal Ravji, 431

Krishna Kumar v Gopaldas, 489

— Kurup V Ra/hukkdlli Pokki, 986 I
-- Lai r Niindeshwar, 545, 563, 573, |

743 I

Krishnamathari v Chellammal, 363 I

Krishnarnachariar v Knshnamachanar, 298, j

867, 881 ;

Krishna Menon v Krishnan Nair, 982
Knshnamma v Lakshmmarayana, 228

— V Perumal, 434, 435 i

Krishnamiirthi v Krishnamurthi, 71, 260,
275, 279, 513, 885
— V Lingayya, 782 791,

— V Seetamma, 359, 360, i

364

Krishnamiirthy v. Siindararamamoorti, 454 '

Krishnan v Damodaran, 967 • I

— V. Govindan, 980 , '

— V Narayanan Nair, 972 j

— V Payankalath, 967

— V Raman, 978 ■

— Chettiar v ManiWcammal, 84 j

— — V Nagamoni, 452 i

— Nair V Kambi, 977. I

Knshnand v Rajaram, 452.

Krishna Pada v The Secy of State, 709
— Pattar v Alamelu, 838

Krishnaramani v. Ananda, 866, 916
Krishna Rao v Benabai, 870

— — V Sundara Siva Rao, 880
Krishnarav v Shankarrav, 273.

— V, Avayambal,362, 903, 924

Knshnaswami v Gouriamma, 912.

— V Puliikaruppa, 563.

— V Rajagopala, 355, 356, 501.
— V, Ramachandra, 908
— V Ramaswami, 438, 439.

— V Rava Ramanadhan, 397,

399

— V Samaram Singarachari,

932.

— V Srinivasa, 662
— Doss Reddi, In re, 474, 481,

788

— - Naidii V Seethalakshmi, 357
Krishnavenamma v Haniimantha, 802.
Kiibhnayya v Chinnaya, 447

V Pichamma, 631, 662
Knshnayan v Mullusami, 5'37, 649
Krishnayya Rao v Siirya Rao, 221, 222,
229, 230, 231, 276, 849.
Krishn Das v Nalhu Ram, 307, 470, 471,
176, 479, 819

Krishnendra v Debendra, 554
Krishtayya v Nara&imhan, 570, 571
Kristnappa v Ramaswamy, 355, 557.
Kristnaswamy v Official Assignee of
Madras, 445, 446.

Kristnaya v Giiraviah, 381, 529, 579
Kristniengar v Vanamamalay, 247
Krisio Babhiney v Ashiitosh, 547, 717
— Gobind V Hem Chiinder, 792
Kristoromoney v Norendro, 887, 893, 894,

895, 898.

Kristrava v Venkatramiah, 579, 580, 686
Kriltibash Mahlon v Bhudwan Mahtani,

94.

Kshettra Mohun Pal v Toofani, 555.
Kshiiode V Saroda, 390, 497
Kshileesh Chandra v Ernpi ror, 173, 178.
Kudomee v Jolt‘eram, 188
Kudutamma v Narasimha, 483
Kiild Chandra v Bania S^indari, ^75
Kiilada Prasada v Haiipada Chatterjee,
96, 103, 438, 551, 925.
— Prasad v Kalidas Naik, 924.
Kiillammal r Kuppu, 748
Kiillean v Kirpa, 293
Kiilloor Narrainsivamv's case, 304
Kiiloda V Jageshar, 837, 839
Kumara v Srinivasa, 953

— Asima V Kumara Krishna, 916.
Kiimaran v Narayan, 126.

Kumarappa v Adaikalam, 572, 573
— V Saminatha, 531
— Reddi V. Manavala Goundan,

319.

Kumarasami v Ramalinga, 941

— V Narayanaswami, 791.
Kumaraswami v Lakshmana, 929.
Kumaravelu v Viranna, 625, 626.

Kumar Chandra v Gobinda Das, 792.
Kumara Tirumalai v Bangaru Tirumalai,

846 .

— Upendra v Nabin Krishna, 867.
Kumla Buhoo v, Muneeshunkur, 148.

TABLE OF CASES.

XLVII

Kumla Biihoo v Gooroo, 461.

Kumud Bandhu v, Ramesh Chandra, 216
Kunchi v% Ammu, 984.

— Amma v, Minakshi Amma, 972.
Kundan v Secy of State, 656, 769
— Bibi V. Sri Aditya Deb, 306
— Lai V Beni Prasad, 310.

Kunhacha Umma v. Kutti Mammi Hajee,
359, 777, 987

Kunhalikutti r Kunba Nayan, 984, 985,

986

Kunhamina v Kunhambi, 894
Kunhammad v. Sara IJmma, 986
Kunhammeyan v. Kunhiso, 983
Kunhamod v. Kuttiah, 977, 980
Kunban v Moorthy, 388.

— V Sankara, 983.

Kunhanna v Timmaju, 983, 987.
Kunhichekkan v Lydia, 103, 551, 971.
Kunhikrishnan v Kunbikavamma, 984
— V Mallapratu, 407.

Kunhikutti v. Miihamed Haji, 978, 986,

987.

Kunhikutty v. Raman, 94

Kunhimbi Umma v ‘Kandy Moithine, 100

Kunhi Pokker v Malikaimal, 986.

— — V. Valia, 978.

Kiinj Behan v Kandh Prasad, 451

— — V Mohit Singh, 927

— — V, Shyam Chand, 947
Kunja Behan v Rasik Lai Sen, 804
Kunjalal v. Narasambal, 18.

Kunnath Packi v Kunnath, 978.

Kunnigarath v Ariangadan, 984, 986
Kunwar Basant v Kiinwar Bnjraj, 41, 71,

93, 173, 242

— Lallajee r Ram Dayal, 264 i

— Tarakeswar v. Kumar Sosbi, 893 '

Kuppa V Dorsami, 943
— V Singaravelu, 647, 822, 823
Kuppal IVaickei v. Lakshmi Ammal, 631
Kuppan Cbetty *i’ Masagoundan, 438.
Kuppuswami v. Jayalaksbmi, 869, 889.

— V. Ranganatha, 896.
Kuppusawmy Reddy v. V enkatal akshmi ,241 ,
Kupurchund v Dadabboy, 442.

Kureem v Oodung, 668

Kurna v Jai Chandra, 708

Kurriitulain v Niizbat-ud-dowla Abbasi,

910, 912

Kurvetappa v, Nigayya, 795.

Kiisum Kumari v. Dasarathi, 533.

— -- V, Satya Ranjan, 102, 241,

242

Kuta Bully v, Kuta Chudappa, 578.
Kuthalmga v Sbanmuga, 789
Kuttayatba Kutti v. Atchuthan, 94
Kutti v. Radhaknstna, 624, 740.

— Mannadiyar v, Payanu Mutben, 981.
Kuvarji v. Moti Haridas, 312.

L

Lachan r. Anant Singb, 811.

Lacbban Kunwar r. Manorath Ram, 746.
Lachhman v Arya Pratinidbi Sagha, 924.
— Prasad v. Sarnam Singh, 479,
493, 506.

Lachhmi v Mohan Lai, 825.

Ldchho Bibi V Gopi Narain, 882.

Lachnian v Patniram, 958.

— V Rupchand, 297
^ Sanwal, 576
Dds V, Khunnu, 417
Laclimeswar v Manowar, 375, 390
Lachmi v Janaki, 571
Lachmin v Koteshar, 520
Lath min Knar v Debi Prasad, 368.

Lachmi Narlin v. Balaram Sahai, 299.
Lachmi Narain v Kishen Kishore, 510.

^ , — y Kimji Lai, 436, 444.

Lachmi Prasad v Mt Parbati, 218.
Laddha Singli v. Mangal Singh, 374.
Ladharam i Mt Viranbai, 78.

Lado V Banarsidas, 88.

Ladii V. Gobardhan, 417
Lahai Pun r Puran Nath, 939.

Lainson v. Lainson, 872
Lana Ram v, Abdul Rahim, 481.
LaJWdnti i Bakshi Ram, 827
— V Safa Chand, 746, 812
Lakhi V Bhairab, 708.

Lakhpathy v Rambodh Singh, 796, 813.
Lakshimoni v Nittyananda, 866.
Lakshmakka v Boggaramanna, 893.
Lakshmamma v, Kameswara, 555,

— V, Venkatasubbiah, 836.
Lakshman v Bhik Chand, 398
t’ Debi Prasad, 369.
i Gopal, 506, 576
— V Jamnabai, 368, 369.

— V Kashinath, 450.

— V Mahabaleshwar, 420, 421.

— V Sarasvatibai, 443, 8^.

— V. Satyabhamahai, 616, 837,

839, 841.

Lakshmana v Chinnathambi, 313.

V. Siva, 656.

Lakshmanachari v. Subbamma, 301.
Lakshmanammal v. Thiruvengada, 623 ,
624, 625, 631, 679 .
Lakshmanan v Srinivasa, 458, 501.
Lakshm«nan Chetty v. Muthii Chelliah,
, • • 437 .

Lakshniana Rau v, Lakshmi Ammal, 277 .
Lakshmanaswami v, Rangamma, 942.
Lak^hman Bhaii v Radhabai, 277, 787 -
— Chethar v, Govindarajulu, 438 .
— Dada Naick v, Ramchandra,
358, 444, 463, 464, 465, 495, 503, 523 ,
567, 883

Lakshina Reddi v Alla Vira Reddi, 300,

303 .

Lakshmappa v, Ramava, 173, 228, 255, 277 ,

284 .

Lakshmi v Anantarama, 84, 596, 769, 813.
— V. Dada Nanaji, 622.

— v. Kalian Singh, 178, 179.

D

XLVIII

TABLE OF CASES.

Lakshmi v Ndra«;imha, 520.

— V Subramanya, 274, 465, 885.

— V Ton, 520.

— Achi V Narayanasami, 566
— Amma v Ratna Naickei, 311.
Lakshmibdi, In re, 917.

— V Bajaji, 215.

— V Gdiipat Morabo, 356 558,

578, 906

— V Ilirabai, 777.

— i Jdvram, 618

— V Ramachandra, 207, 211,

252

— V Saraswatibai, 228

— V Shridar, 302

Lakbhmi Chand v. Gatto Bai, 210, 248,

253

— — V Mt Anandi, 494, 495,

496, 828, 831, 883, 884
Lakshmidara r Knshnachandra, 577
Lakshmidevamma v. Danalakshmammd,

301

Lakshmi Devi v Siiryanarayana, 859
— Nardsamma v Ammanna, 882,

8^7

Lakshminarayana v Dabu, 780
Lakshmi Narayan v Gosthan Raman, 917
Lakshminarayana v Haniimantha, 411
Lakshmindrathirtha v Raghvendra, 930,

938

Lakshmipathi r Chelamayya, 372
Lakshmipati i’ Kandasami, 77, 853, 854 i
V IJdit Pratapsing, 253
Lakshmi Shankar v Vaijnath, 917, 918

Lakshmivenkayamma v Venkata Narasimha,

868

Lala V Hira, 71

— Amarnath v Achan Kuar, 471, 473,

478, 786, 787, 790

— Baijnalh v Ram Gopal, 392, 394,

562

— Byjnath v Bissen, 786

Lai Achal Ram v Kazim Hussain, 287,

288

Lala Hiirro v Basarulh, 308

— Joti V Mt Durani, 626 i

— Parbhii Lai v Mylne, 431, 791

— Muddun Gopal v Khikhinda Koer,

• ^ 362

— Ramjeewan v Dalkoer, 896, 903

— Suraj Prasad v Golab Chand, 380,

435

Lai Bahadur v. Ambika Pfasad, 279, 429,
508, 509, 511

— — V Kanhaya Lai, 355, 356,

359, 362, 374, 883

— — V Sispal, 539

— Behan v Bindesn Misra, 447

— Chand v. Punjab National Bank, 557.

• — — V, Sheo Gobind, 386

— — Shaw V Swarnamoyee, 379.

— Das V Nekimjo, 305.

Laldas Narandas v, Motibai, 359, 360.

Lai Durga v Rani Brij Raj, 287
— Hanhar v Thakur Bajrang, 247, 257,

' 287.

Lab V Murlidhar, 246, 286, 291, 905
Lalita Devi v Ishar Das, 495
— Prasad v Sarnam Singh, 294
Laliteswar v Bhabeswar, 844
Lalit Mohiin v Brojendra, 916

— - ~ V Chiikkan Lai, 895, 897,

903, 907, 908

— — V Daya Moyi, 792, 809, 810.
Laljeet v Rajcoomar, 531, 544, 570, 571.
Lalji V Banisdhar, 451

— ■ V Keshowjec, 386, 391, 394
— Singh V Miichkund, 428, 471, 480
Lai Kiinwar v Chiranji Lai, 287
Lalla Bunseedhur v Koonwai Bmdeswaree,

485

— Ganput V Tooiiin Koonwar, 476,

477.

-- Govmd V Dowlat, 826

Sheo Churn v Ramnandan, 314
Lai 111 V Jagmohan, 202
— Bhagwan v Tiibhuvan Motiram, 417
Lallubhai v Mankuvarnai, 52, 60, 154, 157,
158, 590, 612, 618, 622, 623,
626, 682, 886, 906
Bapubai V Cassibai. 49. 133,

171, 616, 617, 618, 619, 657,

742, 767

Lalhi Singh v Gur Narain, 866

Lai Ram v Deputy Commr , Partabgarh,

357

— Singh V Deo Narain, 485
— — V Pulandar, 435

Ldlta Prasad v Gajadhar, 418, 421, 438,

440

— — V Sab gram, 905

— — V Sri Mahadeoji, 482, 564,

883.

Labi Kuar v Ganga, 466
I Lain V Fd/dl Dm, 814
i Latchamma v Subbarayudu, 660
I Latifunnisa v Nazmiiddin Shah, 951
I Latur Rai v Bhagwan Das, 653, 778, 780,

! 885.

Laxmibai v Samhha, 829
Laxminarain v Tnmbak, .558
Laxmipatirao v Venkatesh, 281
Leake v Robinson, 870, 891
Lekraj v Mahtab, 313, 314
Lekraj Kuar v Mahpal Singh, 67
Lekhraj Kunwar v, Harpal Singh, 777
Lelanund v Government of Bengal, 845
Lenga Laliing v Penguri, 188
Leslie V Sheill, 313

Letchmana Chetty v Subbiah Chetty, 314.
Lilavati V Bishun Chobey, 935, 938
I Lilku Mahto v Amar Mahto, 786
Limba v Rama, 942
Limbaji v Rahi, 310, 470
Lingangowda v Basangauda, 386
Lingappa v Esudasan, 94, 648, 822,
Lmgayya v Chengalammal, 250

TABLE OF CASES.

XUX

Lingayya v. Kanakamma, 834.

Lochiin V. Nemdharee, 354.

Lokenath Das v. Biharee Lai, 315.

Lokhee v Kalypiiddo, 954
Lootfiilhuck V. Gopee, 389.

Lorandi v Mt Nihal Devi, 597.

Luchman v, Akbar, 71.

Liichmanrhunder v. Kallichurn, 956.
Luchman Dass v. Gindhur, 422, 434.
Luchmun v. Kalli Churn, 744.

— V Kanhya Lai, 263.

— V Mohiin, 253, 294.

Lukinee IJ inert hund, 300
Lullii Singh V Gur Narain, 872.

Limkurn v Birji, 277
Lutawan v Lachya, 313.

Lutchmanan Chetty v. Siva Prakasa, 394.
Luximon Row v. Mullar Row, 368.
Lyallpur Bank Ltd , v, Mcherchand, 412.
Lyle V, Ellwood, 174.

Lyons v Blenkin, 303.

M

•

Ma Aye v V. M R P Chettyar firm, 447.
Macdonald v Lalla Shib, 462.

MacDuff, In re, MacDuff v MacDufiF, 914,

920.

Ma Chit Su V, Kyaw Maung, 277.

Mdckay, In re, 903.

Madan Gopal v Sati Prasad, 515.

— Lai V. Chiddu, 494

— V Dewan Chand, 806.

— — V Gajendra Pal, 494

Madanlal v Kishen Singh, 386

— — V Rakhal Chandra Saha,

525, 779.

— — V Thakur Sre Natai, 814
Madana Mohana v. Purushothama, 211,

• 233, 234, 269.

Madan v. Malkt, 813.

Madavarayya v Tntha Sami, 751
Madhab Koen v Baikunta, 306.

— Rav V Kashibai, 866
Madhavaiya v Kerala Varma, 979

— Chetty V Damodaram, 360.
Madhavan v Keshavan, 938
Madhavaram v Tnmbak, 618, 742, 767.
Madhav Rao v Balabhai, 893, 894, 904
Madhavrao v Balknshna, 75.

Madhavrav v Atmaram, 362, 844.

— V Gangabai, 833
Madhgouda v Halappa Balappa, 387.
Madho V Kamta, 940

— Pershad v. Mehrban Singh, 444,

445, 493, 506.

— Prasad v Dhan Raj Kuar, 785.

— Tewari v Mata Dm, 374.
Madhoosoodhun v. Jadu Chander, 149.
Madhub Chandra v Rani Sarat Kumari,

924, 926.

Madhusoodan v Ramji, 464
Madhusudhan v, Bhagwan, 386, 428, 435.

Madhwa Siddhanta u. Venkataramanjulii,

18.

Madivalappa v, Subbappa, 352, 807.
Madura Hindu Permanent Fund v,
Kamakshi, 893.
Magadhu Pillai v Asan Muhammadhu,

421.

Magahiri v Narayana, 442, 447
' Maganlal v Krishna Bibi, 337, 362, 363,

1 373.

I Magniram v Kasturibhai, 937, 944
1 Mahabeer Persad v. Ramyad, 488, 492,
i 506, 544.

I Mahahir v tAmla Prasad, 395, 450
i — Pershad v Adhikary, 746, 811.

I — — 17. Markunda Nath, 425,

I • 430, 431, 434.

I — Prasad v. Basdeo Sing, 412, 434.

I — — V. Ram Tahal, 401

I — — ■ V. Sri Narayan, 411.

I — — V. Syed Mustafa, 880.

! — Singh V. Mt Radha, 628.

, Mahableshvar v. Durgabai, 230
I — V. Ramchandra, 301

I ^ — Narayan v Subiamanya,

I 264.

I Mahadevi v Baldeo, 807.

Mahadeo r. Bissessur, 487.

I — Krishna Rupji, In re, 299

I — Prasad v Mata Prasad, 804.

j — Ram V Ganesh, 430.

I Mahadcv v Lakshman, 540.

Mahadeva v Rama Narayana, 375.
Mahadevappa u. Kashirao, 845.

Mahadu Ganu v, Bayaji Sidu, 277.
Mahajan r. Mt. Parbo, 811.
Mahalakshmamma v, Ramaswami, 788.

— V. Suryanarayana, 555,

579.

— V. Venkataratnamma,

839, 843.

I Mahamaya v Abdur Rahim, 18.

I — V Haridas Haider, 936, 942,

943.

' Mahantava v. Gungava, 178.

Mahant Basant Das v Hem Singh, 88.

I — Govind Rao v Sitaram, 371.

I — ^ Laharpuri v. Mahant Puran, 940.

I — Ramdhay v, Mt. Parbati, 931.

— H^amjf V Lachhii Das, 940.
Mahanth v. Pandey, 412, 414.

Maharaja of Benares v. Rumkumar, 411.
Maharaja of lk>bbili v. Venkataramanjulu,
498, 500, 501, 502,
530

— — — V. Zamindar of

Chundi, 472, 793.

— — Jeypore v Vikramadeo, 825.

— — Kolhapur v. Sundaram, 2,

96, 136, 171, 173, 175, 202, 213,
223, 247, 539, 650, 675, 897.
Maharajulungaru v. Rajah Rao, 852, 853.
I Maharana Ranmal v Kundan, 831.

1 Maharani v. Nunda Lai, 816.

L

TABLE OF CASES

Maha^^haya Sliosmalh v Srimaihi Krishna

252, 255

Mahdshunk< r v Mt Ooilmn, 187

Mahasook v liudree, 460

Mdhdtab V Mirdad, 924

Mahendra v Gins, 762

Mdhfs^har Bakbh v Ratansinjih. 47d, 478

789, 790

Mahrsh Pertdb r l)iij?pdl, 8U
Malu'shwar Sviid Tasoowai i Koonj Be

haree, 485

Mabiin Chiindra v Hara Kumari, 900 924
Mahindra v Sitaram, 494
Mahmud All v Ghinki Shah, J06
Mdhna Smgh v Thaman Singh, 776
Mahomed r Ganaput, 934

— ■ Bdksh V Ilosseinni Bibi, 521.

866

— Shiimsool V Shewakram, 514,

777, 909

Sidick V Hdji Ahmed 100
Syedol r Yeoh Ooi Gark, 313
— Yusuf V Hargovindas 910
Mahommed Ismail v Ahmed Moollah 917
Mailathi Anni v Siibbarava, 96 ./

Mama r Ahsan Hussein, 840
Maiyan Kutti t Kadiri, 986
Majidan v Ran Narain, 308
Makhan Lai v Gay an Singh, 781, 781
Makundi v Sarabsukh, 476, 485 511
Malaiperumal v Arunachala, '401
Malak Chand r Hiralal, 411
Malan v Kishore Chand, 774, 775
Malayandi v Subbarayfti, 190
Malchus V Broughttok^, 945
Malgaiida Paragauda v Babaji, 228
Malkarjun v Narhari, 290
Malla V Muhammad Sharif, 306
Mallappa r Hanmappa, 233, 267

— Parappa v Gangava, 246, 2^48
Malla Reddy v Padmamma, 296
Mallayya v Bapireddi, 191, 781, 784
Mallesam v Jugala, 420
Mallik Sahel) t Mallik Arjunappa, 795
Mallikarjuna v Durga, see Yarlegadda
V Yarlegadda

Mallikarjuna v Venkataratnam, 386 387
Maluka v Pateshar, 746
Ma Me Gale v Ma Sa Yi, 295
Mamayya i; K R Rice Mlil (.o , 401
Mami V Subbarayar, 225
Manakat v. Ibrahim, 979
Ma Nan r Ma E, 957 c
Manavedan v Manavedan, 983
Manavedan v Sndevi. 978
Manavikraman v Sundara Pattai, 988
Man Bhari v Nairn idh, 866
Mancharam v. Datlu, 545

— V Pranshanker, 941, 942. 943
Mancharji v. Kongseoo, 956
Manchersha v. Govind, 452
Mandakini Debi v. Arunabala, 904
Mangala v Dmanath, 841

— V, Tribnuvandas, 870.

I

Maiigal Singh v Ml Sidhaii Kunwar, 846.
Mangdinma i Dorayya, 873, 909
— i Rainanamma, 230
Aldiigat V Bhdiro, 832
Mdiigappa V Marudai, 973
Maiigawa z’ Sheshagir, 800
j Mani i Zaboo, 187

Maiiibai, In the niattei of^ 147
Manibhdi i Shankarlal, 354, 366
Manickam v Poongavanainmal, 93
Mann kaiii Ghctty v Kamalam, 376, 559,

I 567, 579

Manic kdinnial v Murugappa, 916.

I Manickavelu v Satcedan Sowcai, 506
Manifkvamala r Nandakumar, 233, 894
Manigavii v Narandas, 873
' Manika ^. Ellappa, 838
' Manikbai v Gokuldas, 264
j Manikchand v Jagat Scttani, 97, 210, 631,

I ^ 643

Manikka z’ Bala Gopalakrishna, 939
j Manikmulld v Parbuttee, 277
' Manila! ? Bai Rewa, 734, 741, 743, 745,

757, 759

1 Bdi Tara 842

Maninu>lian Pal ? Gourchandia, 390
Manishankar 2 » Bai Midi, 308
Manjaldas i Abdul Razak, 100
Manjamma i Padmanabhavya, 870
Manjanatha r Naravana, 528, 535
Manjavya i Shanmuga, 498, 499, 500, 501,

530, 574

Manji Ram v Tara Singh, 308
Maninnatli i Shankar, 942
Manki Kuar v Hunsraj, 479.

Manki Kunwar v Kundan Kunwar, 659.
Mank»)()nwur v Bhugoo, 615
Manrnatha i Rohili, 813
Manmatha Kumar Saha v Exchange Loan
Co Lvl , 313

Man Mohan Das v Ram Dei, 951, 952
Manna Lai v Karusmgh, 480, 494
Mannava Rama Rao v Venkatasiibbayya

510

Mannox i Greener, 904
Manohar v Jadunalh, 313

— Das V Manzir All, 388

(janesh v Lakhmiram, 917, 922,
927, 929, 932, 946
Lai V Banarsi Das, 210, 251
Mukherjee v Bhupendranath,
894, 913, 915, 928, 929, 931, 944
Manorama v Kalicharan, 919
Mandia v Jiwan, 827
Man Singh v Gaini, 727, 732
Man^ingh v Karan Singh, 510

— V Nowlakh ball, 798, 800
Manumallaswami t Narayanaswami, 898
Maradevi v Pammakka, 984
Marappa v Rangasami, 513, 519, 520
Mareyya v Ramalakshmi, 241, 242, 255
Margaret Fernandez v Solina Coelho, 904.
Man i Chinnammal, 543, 613, 616, 626
— Devamma v Jinamma, 88

TABLE OF CASES.

LI

Maritime Electric Co v. General Dames,

Ltd., 289.

Marivitt^ Mathu v, Pathram, 979.

Markanda v. Bidyanath, 487.

Markandey Singh v, Badan Singh, 475, I

480. I

Mart and v. Radhabai, 568, 573. I

Rao V, Malhar Rao, 844.

Mam V. Hanso, 800.

Marudamuthu v. Srinivasa, 793, 798.
Mariidanayakam v Siibramanyam, 804. |

Mariidayi v Doraisami, 596, 645, 703 t

Maruthamiithu v, Kadir Badsha, 452. 453.
Marnthappan v. Niraikulathan, 477
Mariiti V. Babaji, 430.

— V Gopalkrishnan, 922, 927
— V Rama, 522, 576. |

— Narayan v Lilachand, 449, 450.
Masitullah v. Damodar, 342, 407, 417, 471,

479, 531^ 1

Mata Baksh v Ajodhia Baksh, 206, 207 i
— Dm V Gaya Din, 432.

— — V Ram Lakhan, 411 '

— Prasad v Nageshar, 805, 808, 813, ,

• 814, 815 i

Matangini i’ Jay Kali, 728 ;

— V Jogendro, 826 .

Mathiej-un, In re, (87 L I ( h. 345). 304.
Mathioson, In re, [(1927) 1 Ch 283) 1, 457 1

Mathura v Emi, 69, 73, 292 !

— V Rajkiimar, 494. '

V Ramachandra, 435 j

Singh V Rama Rudra, 314
Mathuranath v, Lakhi Naram, 891. 922
Matlub Hussain v Kalawati, 870 j

Matiingini Gupta v Ram Rutton Roy, 80,

656 !

Matiira Siibbarao v Surendranath, 871
Man)ildl V, Chandrabali, 150, 153, 174
Mdiilvi Sayyed v Mt Bebee, 951
Maun^ Pokin v Maiing Po Shin, 953.

Maung Thse r* Mating Tun Pe, 295
Md Yait V. Maung Chit Mating, 89, 90.
Mayakone v Periaswami, 480 i

Mayanadan v Arunachala, 421 i

Mayandi v Sandanam, 362 j

Ma Ya Shin v, Nihal Singh, 300. :

Mayna Bai v Llttaram, 651, 690, 691.

Mayor of Lyons v Advocate-Genl. of

Bengal, 945. I

Mawng Tun Pe v. Haidar, 949. I

Ma Wun Di v Makin, 174
Mazaffer v. Jabeda, 944.

McDowell & Co., v, Raghava Chelty, 112
Md All Khan v Kandan Lai
Md. Hussein v Dipchand, 430
Medal Dalavoi v. Nainar Thevan, 471, 479,

789, 819.

Medal Delavoy v. Medal Delavoy, 6^.

Medni Prasad v. Nand Keshwar, 498.
Meenakshi v. Muniandl, 37, 123, 691, 763.

— V. Ramaswaml, 691.

Meenakshi Achl r. Somasundaram, 928,

941, 944.

Meenak«h i Ammal v. Rama Ayyar, 764,

829.

— Simdaram v. Ranga Ayyangai,

311.

Meenambal Ammal v Aburabammal, 789,

808.

Meenatchee v. Chetumbra, 374.

Meghii Rai v Ram Khelawan, 813.
Mehrban Khan v. Makhna, 86.

Mela Mai v Gori, 449.

Melaram v. Thanooram, 178.

Melgirappa i Shivappa, 782, 786
Meloth Kannan r. Kodath Kammaran, 981.
Melharam r Rewachand, 368, 369.

Mewa Rant v. Lai Sahai, 93.

Meyyappa v. Chidambaram, 446.

— V. Meyyappa, 437.

*Mhalsabai v, Vithoba, 240.

Mian Karim v, Dargah Pir Rattan, 428,

429.

Miller V Runganath, 468, 477, 488
Milroy V Lord, 868
Minakshi v. Appakiitti, 649, 650
— Chmnappa, 837
— V Tmmudi Kanaka, 418, 425,
• 430.

— V Ramanada, 42, 93, 170, 246.
— i Virappa, 510, 884.

Minty t) Bowne, Davidson, In re, 920
Mira Bivi v, Vellayanna, 70.

Mirali Rahimbhoy v Rehmoobhoy, 315
Miranda, E. F. C, In the goods of, 298
Mir Anwaiuddin, Ex parte, 97
— Mahomed v, Kishori, 956
— • Sawarjan v Fakhiriiddin, 306
Mirehoiise v Rennell, 87.

Mirza Jehan r Badshoo Bahoo, 371

— — V Ndwab Afsur Bahu. 371.
Mirzamal v, Rarncshwar, 391.

Mitdr Sen r Maqinil Hasan Khan, 17, 79,
203, 551, 728.

Mitta Kiinth v Neeriinjun, 525, 941, 942
Mittar Sam v Data Ram, 211, 276.
Modhoo Dyal v (iolbiir, 490, 514, 515.
Modhii Sudan v. Rooke, 517, 786.

Modiin Mohun v, Futtanmmssa, 521.
Mohabeer Kooer v, Joobha, 35o, 471
Mahadeay v. Haruknaram, 546, 769.
Mohafnmad Afzal Khan v. Abdul Rahman,
, , • 506, 570.

Mohamed All Khan v, Kanai Lai, 788, 789,

804.

Mohammad Haji v Vednath Singh, 953.
— Jin V. Mt. Siindar, 187.

— Sadiq V, Fakir Jahan, 951,

952.

— Sharif v. Mehraj Din, 447.
Mohanchand v. Isakbhai, 390.

Mohandas v, Krishnabai, 674.

Mohan Lai r. Balaprasad, 432.

— — V. Jagjivan, 787.

— — V. Niranjan Das, 897.

— — V. Wadhwa Singh, 506.

— Lalji V. Gordhan, 928, 941, 944.

LII

TABLE OF CASES.

Mahan Lalji v Madhsudan, 941, 944 I
— Singh V Mt Gur Devi, 539, 573, ;

909 I

Mohaniind Mondal v Nafur, 307, 308, 310, j

470 j

Mohar Singh v Het Singh, 891, 917 |

Mohendra Narayan v Dakshina Ranjan, '

741 j

Mohtndianath v Kali Prasad 957 I

Mohendra Nath r Shamsiinni'ssa, 402, 805, !

807, 808 i

Mohesh rhiindi^r i Chnnder Mohun, 726
— Narain v Tariick Nath, 202, 290
Mohieswaia i Durgamha, 835 i

Mohiin (Jinnder v Kashi Kanf, 746 1

Mohinee Mohnn v Rash Behar>, 745, 776
— Dehi V Puma Sahi, 837, 838

839

Mohon Bihee v Dhiirmoda*', 306, 312 I

Mohun (^eer v Mt Totoa, 831

— Pershad v Ki'^hen Kishoie, 738 i
Mohunt Bhagohun v Roghunundun 726
— Copal V Kerpararn, 940
Moithiyan Kutty r Ayissa, 969, 987 i

Mokhada r Nundolal, 133 825 I

Mokoond Lai v Nohodip, 303, 305 |

Mokoondolal v (^anesh, 555, 899, 903 i
Mokund Lai v Monmohini, 706 '

Mokrund Del) v Ranee Bissessuree, 300 ,

Mokundo 1 Bykunt, 257
Mondakini v Adinath, 206, 217, 266
Monie V S(ott, 914

Monijan Bibi v District Judge, Birhhum, |

149

Moniram Kolita v Kerry Kolitany, 39, 49, |
596, 704, 728, 770, 786, 831 .

Monmohan Ghosh v Siddheshwar, 916 |

Monsha Ram Chakravarti i' Ganesh, 572 '

Moonshee Bii/loor v Shiimsoonnissa, 189 j
Mon Mohint-t 7’ Balurk, 825
Monoinohini Dasi v Han Prasad Bose, I

302 i

Moodookrishna v Tandavaioy, 300 |

Moolchand v Chahta Devi, 552, 732 1

Mool Raj V Manohar Lai, 362, 374, 376
Moosa Ilaji Joonas v Abdul Rahim, 100, i

133 I

Moothia V IFppon 247, 263 , j

Mootoopermall v Tondavpn, 319 1

Mootoovengada v Toombayasamy, 878 j
Moottoocomarappa v Hinnoo, 448 j

Moottoo Meenatchy v Villoo, 927
Mootloosamy v Lutchmeedrvummali, 240
Morarji Cullianji v Nenbai, 918, 919 i

Monet V Bishop of Durham, 914, 919 I

Moro Narayan r Balaji, 277 !

Moro Visvanalh v Gane&h, 337, 342, 343, ,
531, 535, 576 ]

Morrison v Verschoyle, 400 |

Morun Moee v Bojoy, 247 j

Motee Lai v Mitterjeet, 462 i

Mothoor Mohun v Soorendro, 205, 297 !

Moti V Amarchand, 571 '

Moll V Beni, 174

— V Lai Doss, 799

— Singh V Ghandarap Singh, 803.
Motichand v Kunwar Kalika, 757.

Motilal V Bai Chanthal, 190

— V Karrabiildin, 445, 446
— V Punjaji, 452
MoyidikiiUi V. Knshnan, 977, 979, 984
Mrinamoyi v Jogodishuii, 313
Muchoo V Arzoom, 303
Miidoobun V Hun, 689
Muddun Gopal v Ram Baksh, 350. 356,
357, 358, 460, 514

— Lai V Komul Bibee, 922, 925
— Thakiir v Kanloo Lai, 419, 423,

433

Mudit 1 Ranglal, 380, 449, 468, 176
Muhammad v Radheram, 381
Muhammad Abdul v Muhammad Ahdiis,

388

— Afzul V Ghiilam, 77, 846
— Aliyar v (riiana Ammal, 103

— Hussain v Aishabai, 868

V Kisiiva Nandan
Sahai, ..31, 352, .354, 360,
366, 460, 663, 664

— Ibrahim v Sheikh Ibiahim,

79

— Imam v Sardar Hussain, 68

Kunhi V Packirichi Amma,
977

Mumtaz v Sheo Ratlangir,

314

— Muzammil-ullah v Mithu Lai,

494

— Null V Brij Bihari Lai, 485,

795

■ — Raza V Abbas Bandi, 86, 555,

871, 903

— Sadik V Kheddan Lall, 386

— Sa’id V Kunwar Darsh^i, 793
Muharram Ah r Barkat A?li, 71
Muhtaboo v Gunesh, 300
Muja\ar v Hussain, 928
Mukharam Mahto v Kesho Ram, 387
Mukund V Balakrishna, 497, 557, 559
Mukiinda Lai v Lehuraux, 522
Mukundlal Chakravarti r Jogesthandra,

576

Mula V Partab, 656, 832
Mulbai In the goods of, 100
Mulchand v Bhudia, 173

— Hemraj v Jairamdas, 391, 395,

409, 421

Mulji i Cursandas, 622

— Baishanker v Bai Ujam, 831
— Thackersay v Gomati, 144, 145
Mulka Johan v Deputy C ommissioner of
Lucknow, 371

Mulraz v Chalekany, 460, 886
Mumma v Krishna, 745
Muna Mahto v Raghunath, .337.
Mungniram v Mohunt Gursahai, 297, 314,

315

TABLE OF CASES.

un

Miinia V Puran, 748.

— Kone V. Periimal, 306.

Muniappa v Kastun, 319.

Munilal Harg »vdn, In /-e, 299.

Muni Lai v. Gian Singh, 428.

Munibdmi Chetty v, Maruthdmmal, 360.
Muniswami v Kiittimoopan, 421.

Miinni Bibi v Tnloki Nath, 570, 807.

— Kunwar v Madan Gopdl, 306, 867.
Miinnilal v Mt. Phiila, 743, 883.

— V, Shyama, 178.

Munnulal v. Ghulam Abbas, 315.

Munshildl V Shivdevi, 781.

Munshiram, In re^ 292.

— V Emperor, 174
Miiniiswami v Sagalaguna, 871.

Miippil Ndir V Ukona, 988.

Miirahdn Brahma Sastri v Sumitramma,
211, 221, 222, 223, 225, 230.
Miirali V. Rchmoobhoy, 313.

Murari v Tayana, 309.

— Ldl V Kundan Lai, 286, 906
— Vithoji V Mukund Shivaji, 376,

, 556, 557.

Murarji v Parvatibai, 726, 727.

Murarrao v Sitarain, 500, 574
Murbi V Ghammar, 479
Murli V Bmdeswan, 477.

Murtuza Husain v Muhammad Yasin, 595,

644, 852

Murugappa v Nagdppa, 73, 143, 226, 283.
Murugayi v Viramakali, 187, 655, 656, 832.
Munigayya v Palaniyandi, 558
Murugeppa v Kalawa, 206
Munigebam Pillai v. Manickava&aka, 473,
484, 937, 944.

Musadee v Meerza, 953.

Muteeram v Gopal, 781.

Muthala Reddy v Sankarappa, 71, 296
Muthajipudayan v Ammani Ammal, 50,
• 755.

Muthayya v, Minakshi, 263.

Muthia t Appala, 506

Muthiah Chetli v, Periannan, 915, 941,

947.

Muthoora v Bootun, 468, 476.

Muthu V. Chidambaram, 141
Muthu Amma v Gopalan, 984
Muthu Meenakshi v. Chendrasekhara, 361.
Muthu Naicken v Srinivasa, 657.

Muthu Rama Krishna v. Marimuthu, 745.
Muthukannu v Paramaswami, 74, 292.
Muthu Kannu v. Shunmugavelu, 872.
Muthukaruppa v. Sellathammal, 735, 736,
739, 743, 747, 748.
Mulhukrishna v Ramachandra, 945
Muthukumara Chetty v. Anthony, 871.
Muthukumarasami v. Han Narayana, 817.
Muthuraman v. Periannan, 951
Muthuraman v Ponnusamy, 554, 898
Muthuraman Chetti v. Ettappaswami, 435
Muthuraman Chetty v. Krishna Pillay, 957.
Muthureddi v Chinappa, 450.

Muthusami v. Masilamani, 78, 91, 144, 172,

178, 183.

— V Muthukumaraswami, 49, 601,

610, 630, 631, 636, 638, 640,
673, 674.

— V Mytheen Pichai, 415.

— V Nallakulanthai, 567, 573.

— V Pulavaratal, 218, 228.

— Ayyar v. Kalyani, 889.

— Gurukkal v. Meenammal, 552,

726, 731, 732.

Muthusamier v Sreemethanidhi, 931, 934.
Muthuswami v Annamalai, 310, 311.
Muthuvidn V Sinna Samiivian, 954.
Mutsdddi Hkl V Sakhirchand, 453.

— — V Kundan Lai, 215, 216.
Jfiittammal v Kamakshy, 831

— V. Vengalakshmi, 626

Muttaya Pillai v Tinncvelly South Indian

Bank, 401.

Muttayan Chetty v Sangili, 364, 365, 366,
416, 418, 419, 424, 430, 431.
Miithd V Virammdl, 837
Miittu Ramalmga v Penanayagum, 939,

940.

Vaduganatha v Periasami, 596, 645,
856, aS9.

— — V Dorasinga, 20, 51,
77, 93, 372, 660, 662, 741, 858, 859.

Muttusamy v Vencaleswara, 822, 861.
Muttuswami v. Subbiramamya, 389, 529.

— Chetty V, Chmnammal, 446.
Muttiivengadachellaswamy v Thumbhaya-

swamy, 543.

Myna Baee v. Ootaram, 78, 95, 352.

N

Nabadivip Chandra v Bhagaban Chundra,

390.

Nabadweepachandra Das v, Lokenath Ray,

866 .

Nabagopal v Sarala Bala, 881, 882.
Nabakishore v. Upendra, 772, 773, 775,

789.

Nabmchandra v. Rajanichandra, 890.

— V. Shona Mala Chose, 653,

780.

Nachiappa Chetty v. Raman Chetty, 393.

— ^ Gounden v. Rangasami Gound-

en, 610.

Nachiappan v. R. M. P. Chettyar Firm,

395.

Nafar ChandrS v Kailash Chandra, 871,

— — V Ratan, 899.
Nagabhushanam v, Seshamma, 202.
Nagalakshmamma v Visvanatha Sastri,

831.

Nagalinga v, Subbiramamya, 531.
Nagalingam Pillai r Ramachandra, 357,

460.

Nagalutchmee v Gopoo Nadaraja, 460,
^ 876, 877, 878, 883.

Nagamma v Virabhadra, 831.

LIV

TABLE OF CASES

Nagammal r. Sankaiappa, 203
Nagappa v Brahadambal, 479, 513, 819,

851

— t’ Siibba Sastri, 202
Nagar v Khase, 656.

Nagasubramania v. Krishnamachanai, 401
Nagayya v Karuppayee, 808
Nagendra v Benoy, 727
— V Kammee, 807

— ■ Chandra v Amar Chandra, 452

' Mohan v Pyan Mohan, 506
Nagendrabala v Panchanan, 809
Nagendranath Palit v Rabindra, 928, 929,

931

Nagesh v Giiriirao, 597, 662, 756
Nageshar Baksh v Ganesha, 373, 557 '

Naginbhai v Abdulla, 951 j

Nagindas v Mahomed Yusuf, 469, 180 1

Nagindas Bhagwandas i. Bachoo Hiirki'> i

-ondas, 125, 257 262 |

Nahalchand v Bai Shiva, 748 ,

V Henuhand, 618 !

Naina Pillay v Daivanai, 362 ;

Nainapjllay Maracayar x) Rainanathan

Cheltiar, 935 916 '

Najjukhan v Imtiazuddin, 390 |

Nakshetrainali v Brajasunder, 892, 918 >

Naku Amma v Raghava Menon. 985 ;

Nalinakfc>ha r Rajanikant, 80, 89 178, i

692, 694 728

Nalmikanta i Surnamoyce, 569, 570
Nallanna v Ponnal. 624
Nallapparcddi t Balammal, 539
Nallathambi r Mukunda, 463
Nallayappa v Ambalavana, 929
Nalluri Kristnama v Kamcpalli \ enkata-
subbayva, 296

Namanlal v Hai Bhagwan, 819 1

Namasevayam i Annama, 148
Namberumal Chetty v Veerapcrunial 911 j
Nammalwar v Tayarammal, 748
Nam Naram v Ramoon, 926 '

Nana Nurain r Huree Punth, 460 I

— Ojha r Parbhu, 577, 579, 686 i

— Tawker v Ramachandra Tawker, j
350, 351. 644 |

Nanabhai v \chralbai, 354, 357, 718

— V. Janardhan, 148 1

— V Shnman Goswami, 941 {

Nanakchand v Banarsi l3as', 402 i

Nanala) Lallubhoy v Harlochand, 921 !

Nand Kishore v, Ahmad, 958 |

— — V Kunj Bihaiyi, 415 '

— — t’ Madan Lai, 439 ;

— — r Pa«upati Nath, 911

— Ram V Bhupal Singh, 487

— — V. Mangal Sen, 464, 567.
Nandalal v Arunchandra, 931
Nandan v. Ajudhia, 306.

— V Wazira, 818.

— Prasad v. Abdul Aziz, 312.

Nandi v The Crown, 102.

— r. Sarup Lai, 519.

Nanhi v Gaun Sankar, 614, 620
Nanja Pillai v. Sivabagyathachi, 755, 757.
Nanjamma v Visvvtnathiah, 835 ^
Nanjundaswami v. Kanagaraju, 493,

Nannu Shankar Tawker v, Bashyam, 400,

432

Nanomi Babuasin v. Modun Mohiin, 419.

424, 425, 429, 430, 431, 440, 465.
Nana v, Pubayil, 970.

Naraganti v Venkatachalapati, 372, 84^,
849, 855, 857

Naraganty v Vengamma, 373, 844, 861.
Narahan v Tai, 801.

Naram v Brindabun, 940

V Lokenath, 462, 850
I Mohun Singh, 656
— Chunder v Dataram, 521
— Das V Har Dyal, 509
- - V Mt Dania, 306
-- — r Tiilok Tiwari. 95, 602,

7hL

— — V Waiyam Singh, 814

Dhara v Raklial, 178, 647
— Persad v Sarnam Singh, 428
— Singh V Mt Shiam Kali Kuimui,

242

Narainbati v Ramdhari, 781, 784
Naraini Knar v Chandi Din, 604, 631
Narainikutti v Achuthankutti, 540, 970
Naranamaiya v Vasteva, 810
Naianbhai v Ranchod, 388, 389, 573
Naranjan ?’ Bakhtawar, 632
Narasammal v Ralaramarharlu, 60 245
Naiasanna v Ganga, 651
Narasayya X' \ enkayya, 740
Ndiasimha v Avvan Clietty, 918

— r Neerabhadra 296, 348, 532,

597, 731.

— r Venkata, '^ee Samudrala v,

Samudrala

— X’ Venkatalingum 922 ^

-- Raghavachari x^ The SeeretaiN
of State for India, 319
Narasiinhan x’ Narasimhan, 351, 644
Narasimharav v Antaji, 416
Narasimma v Anantha, 943

— V Magammal, 624, 678, 679
• — V Venkatadri, 778
Narasinhadas v Khanderao, 689
Narayan v Bhuban Mohini, 945

— V Co-operative Central Bank of
Malkapur, 412.

V Daltatraya, 924

— V Kaji Ghulam, 958

— V Krishna, 952

V Laving, 72

— r Nathaji, 385, 499, 505

— V Niranjan, 78

— V, Pandurang, 570, 571.

— V. Satvaji, 18

— V Tulsiram, 96

— V Vasil deo, 844.

— V Venkatacharya, 412.

— V Waman, 742, 743, 768.

TABLE OF CASES.

LV

Narayan Babaji v. Nana Manohar, 208,
227, 255, 572.
— Lixman v. Gopalrao Trimbak,

283.

— Pundhk v. Laxman, 38, 94, 688,
690, 691, 763.
Rao V Mulchand, 481.

— V Rakhmabai, 830.

— — V. Venkatakrishna Rao, 374

Narayana v Chengalamma, 371, 777, 846
— V Rama, 818.

— V Ranga, 943.

V, Rayappa, 448.

— V. Thinimampu, 986
— V Vengu Animal, 211, 905

— V Virappa, 421

Anangd v. Madhdvadeo, 870.

— Ayyar v Moorthi Kendan, 407
— Ndmbudn v Theva Amma, 979
Rao V Puiubhothama Rao, 496,
562, 885

— — V. Venkatappayya, 452.

453

— Sdh V Kannamma Bai, 86

— hanKdr bah, 528, 579.
Ndrayaiidcharyd v Narso, 429
Narayanan v Kannan, 871.

— ■ V Ravunni, 91, 310.

— (’hettiar v Lakshmana, 932

— - rhetty V Muthiah, 404,

— — V Suppiah, 775

— Nambudri v Knshnan Nam-

budn, 92

— — V Sundara Iyer,

981

Narayanasami v Esa Ahbayi, 443

•— V Mangammal, 218, 266

— V Ramasami, 274, 885

— V Sami das, 404, 416, 421

Narayanaswami v Gopalaswami, 873, 898
Govindaswami, 954.

— V Kuppuswami, 240.

r Rama Iyer, 519, 800,
820

— r Ratnasabapathy, 362,

363

Narayani v Govinda, 977

V. Sankunni, 979.

Narayen v Nana, 308.

Narbadabai v Mahadeo, 824, 825, 829, 840,

843

Narendra n. Nagendra, 94

— Nath V Dina Nath, 208, 292
Narendranath v Abani, 381, 383, 385, 527,

529

Narhar Govind v. Narayan, 207.

Nannder v, Achal, 845, 858.

Narinjan v. Gurmukh, 825.

Narmadabai v. Rupsingh, 572.

Naro Gopal v, Paragauda, 428, 500, 505.
Narotam v, Nanka, 748.

Narottam v. Narsandas, 460, 878, 883, 886.
Narsappa v, Bharmappa, 597.

— V. Sakharam, 742, 767.

Narsaya v. Venkataramana, 934.

Narsi Tokersey v. Sachmdranath, 299.
Narsmgdas v. Rahimanbai, 290.

Narsingh v. Lalji, 420, 436.

— V, Mahalakshmamma, 752, 873,

886, 901.

Naru V. Tai, 799.

Nasir-ul-Huq v. Faiyaz-ul-Rahman, 806.
Nataraja v. Kailasam, 939, 947.

— V. Lakshmana, 395, 396, 474, 481.
— Naicken v. Ayyaswami Pillai,

452.

Natarajan v Muthiah, 821
Natasayyan Ponnusami, 412, 419, 432.
Natchiarammal n. Gopalakrishna, 841.
Natesa v Sahasranama, 481
• — Nattar v. Manikka Nattar, 311.
Natesan r Subramaniya, 558.

Ndtesdvyan n. Narasimayyar, 315.

Natha Giilab v Shaller, 868

— Ndthiiram v Mehta Chotalal, 179,

180, 182.

Nathaji v Han, 250

Nat he Piijari v Radha Binode, 935.

Nathi Bai, In the goods of, 140
Ndtnu V Dalwant Rao, 307.

— V Dindayal, 477.

Bai r Bai Hansgoun, 523.

— Lai r Babu Ram, 745, 777.

— — t Chadi Sahi, 516
Nathiini v. Mamaj, 387.

Nathiiram v Shoma Chhagan, 308, 477.
Nathii Ramil v Gangabai, 906
Navakoti Narayana v. Logalinga, 306.
Navalthand v Manikchand, 895
Navalram v Nandkishore, 742, 767
Navaneethakrishna t Collector of Tinne*
\elly, 214, 286, 624, 626, 627, 773, 905.
Navnitldl V Puriishotam, 188, 301.

Nawdb V Sardar Singh, 395.

Begam v Husain All, 952
Nawal Kishore v. Sardar Singh, 402

- - Singh V Bhagwan Singh, 532, 644..
Nazir Begam v Rao Raghunath, 487, 789.
Nearam Kachan v. Ardharam Kachan, 94
Neelakanta v. Chinna Ammal, 818
Neelawa Dundappa v. Gurshiddappa, 95,

241, 692, 763.

Neelkaunl v. Anundmoyee, 207
— Vf Mane*e, 567.

Neelkisto Deb v Beerchunder, 76, 77, 282,
337, 373, 707, 848, 852, 857.
Nehalo v Kishen, 655.

Neki Ram v, Kure, 470, 478
Nellaikumaru v, Marakathammal, 745, 776.
Nelliappa v. Punnaivanam, 946.

Nemmanna Kudre v, Achmu, 983
Nepal Das r. Probhas Chundra, 694, 706,

71U

Newbould v. Attorney General, 153.
Newton, In re, 304.

Nhanee v, Hiireeram, 411.

Niamat Rai v. Din Dayal, 399, 478, 479,.

788, 819.

LVI

TABLE OF CASES.

Nibaran Chandra v Nirupama, 383, 385
Nichols V Nixey, 457
Niddha Lai v Collector of Bulandshr, 412
Nidhoomani v Saroda Ptrshad, 286, 905.
Nihalchand v Mohan Lai, 418, 532.

— V Narain Das, 924
Niladri Sahii r (hatmhhiii Das, 930, 938
Nilakiindan v Madhavan 407
Nilconuil V Jotcndro, 597
Nilkanlh v Hanmant, 555

— V Vidya Naiasinh, 571
Nilkantha v Delundra, 454
Nilmadhal) Das v BishumliLr Dost>, 281
Nilmoney r Baneshur, 823*,

Nilmoni V Bakranath, 845
Nilrnony r Hingoo, 861
Nimbalkar v Jayavanlrav, 211, 250 •

Ningareddi v Lakshinawa, 467, 823
Nirad Mohini v Shibadas, 943
Niranjan Prasad v Behan Lai, 926
Nirmal v Mohitosh Das, 798
Nirmala v Deva Narayana, 774, 775
Nirmalanalini v Kamalabala, 298
Nirmalchunder v M<1 Siddiok, 953
Nirman i' Fateh Bahadur, 558, 808 f
Nirvanaya r Nirvanaya 308
Nissar All v Mohammad Ali, 891
Nistarini v Makhanlal, 838
Nittianand v Krishna Dyal, 287
Nittokisboree v Jogendro 833
Nitya Madhav Das v Srinath Chandra,

657

Nitye V Soondaree, 826 827
Ni/amiiddin v Anandi Prasad, 519
Nobin Chunder v Guru Pei sad, 811

— — V Ishu Chunder, 815

— — V Ramesh, 18

Nobokishore v Harmath, 798, 801
Nolin Behan v Han Pada, 70
Norendranalh v Kamalbasini, 896, 910
Nowbut V Md Lad Kooer, 144
Nowrultun v Balu Bouree, 471
Nnshinga Charan v Ashutosh Deo 307.
Nubkissen v Hurrishchunder, 941
Nuddea case, see Eshan Chand v Eshore

Chand

Nund Coomar Lall v Ruzziooddeen, 347,

. 354

Nundlal v. Tapeedas, 139^ 14§

Nundun v Lloyd, 390

Niinna Setti v Chidaraboyina, 451, 455,

457, 458

Meah V Krishnf#tami, 777
Nutbehari Das v Nanilal Das, 363, 375
Niizvid case, see Venkata Narasimha v

Narayya

o

Obala Kondama v Kandasami, 778, 785,
786, 789, 790, 806

Obhoy Churn v Gobind Chunder, 376
Obunnessurree v Kishen, 98

Official Assignee, Madras v Natesa Gra-

mani, 952

— — • — V ‘ Neelambal,

361, 392

— — — V Palaniappa

Chetty, 392,
393, 394

— — — V Rajabadar

381, 382, 529

— -- — V Ramachandia

Ayyar, 454

Official Liquidator, U P. Oil Mills v
Jamna Prasad, 418
Official Receiver v Arunachala, 455

— - - V Impel lal Bank, 455

— — V Ramachandrappa, 455,

457

— — V Subbamma, 838

Ojoodhya v Ramsarun, 460
0’Mahon(*y v Burdelt, 895
Om Prakash v Motiram, 454
Ondy Kadaron v Aroonachella, 287
Onkar v Kisan ^ingh, 410, 476
Oodovchurn, In rc, 709, 710
Ooman Dut v Kunnia, 294

I Oorcad, <ase of the ZemindarY of, see
I Ramalakshmi r Si\anantha

I Oorkhya Kooer v Rajoo Nve, 668

! Paehayammal v Paramasiva, 830

Packirisawrny v Doraisawmy, 352, 537,

619

Padaiirav v Ramrav, 217
Padam Kuman Suraj Kuman, 178
Padamma v Tliemana, 986
' Padam Singh r Reoti Saran, 485.

Padayaehi v A Ammal, 136
1 Padniaknshna v Nagarnuni, 311
I Padmalav v Fakira Debya, 287 •
Padmanabhudu Buchftmma, 817
; Pahalad v Gawri Dull, 775
j Pahalawansingh v Jiwandas, 400, 793
Pahlwan v Ram Bharose, 955
I Paigi V Sheo Narain, 188, 189
, Pakkaran v Pathumina Umma, 968
Pakkirji Kanni v Manjoor Saheb, 571
I Pdknchi V Kumbachd, 100
Palani v Kasi, 540

Pdlaniammal v Muthuvenkatarheld, 557,

558, 561, 568, 570, 572, 845

Palaniandi v Velayiidha, 745, 778
Palaniandi v Veramalai, 506
Palaniappa v Palani, 455

— Chettiar v Alagan, 67, 93, 184,

! 535

[ — Chetty V Chockalingam, 71,

' 755

— — V Devasikamony, 307,

309, 473, 474 475,

481, 788, 930, 931

, Palani Gounden v Rangayya, 435

Konan v Masakonam, 500, 574

TABLE OF CASES.

LVII

Palanivelappa v. Mannaru, 466, 491.
Palaniyappa v, Arumugam, 953.

Palikandy iVJ^mmad v. Krishnan Nair, 843.
Pallayya v. nainavadhanulu, 922.
Panachand v Manoharlal, 779, 781.
Panchanadayan v, Nilakandayan, 846.
Panchaksharachetly v Pattammal, 836.
Panchakshan v Venkatratnam, 930
Panchanan v Surendranath, 943.
Panchanon Majumdar v, Binoy Krishna,

275.

Panchapagesd v. Kanakammal, 823
Pdnchappa v Sanganbasawa, 207, 241, 301.
Panclicowriemiill v Cliuniioo Lall, 948
Pandiya v Piili, 651
Pandliarinalli v Govind, 779
Pandit Paima Nand v. Nihal Chand, 689,
733, 875, 915.

— Ram Narrain v Moiilvi, 951
Pandnrang v Bhagwandas, 426, 493

— i; Bbaskar, 492, 499, 500, 574.

— V Markandeya, 803

— V, Narmadabai, 276.

Pandu \ithoji v Goma Ramji, 493, 498,
» 503.

Pangi Athan v Bheomar, 982
Pangudaya v L'thandiya, 403, 440
Pannalal v Rama Nand, 438
Pannasundan v Benares Bank Ltd , 915,

916, 923.

Panyam r. Ramalak^hmamma, 234, 235.
Papamma v. Appa Row, 240, 250, 283, 290.
Paparayudu v Rattamma, 516, 819.

Papiah V Subbasastrulii, 423
Pappi Amma v Rama Iyer, 979, 981, 982.
Paramal v Narayanan, 407, 980.
Paramanandas v Parbhudas, 631.
Paramasivam Pillai v Meenakshisundaram,

540.

Paramesvara v Narayana, 973
ParameswAram v Shungaran, 388.

Parami v MabadCVi, 831
Parasara v. Rangaraja, 216, 221.

Paras Ram i> Sherjit, 390.

Parasurama v. Thirumal Row, 932.
Parathnath v Rameswar, 792, 810
Parbati v Baijnatb, 807

— V. Jagdis Chiindei, 95, 96, 852,

853

— V. Naiinihal, 557, 559

— V Ram Prasad, 746

— V Sundar, 246

— Bibi V Ram Banin, 891, 921
— Kiinwar v. Chandar Pal, 68, 77,

658, 854.

Parbbulal v Bbagwan, 359.

Pareman Das v Bhattu Mabton, 412.
Pareshchandra v Amaresb, 362.
Pareshmani v Dinanath, 726.

Parfitt V. Lawless, 881.

Parichat v. Zalim, 822

Parkash v. Chandar Parkash, 898.

Parmanund v. Shiv Charan, 248, 261, 883,

884.

*Parmanundoss v Venayak Rao, 884, 918.
Parmappa v Sbiddappa, 757
Parmeshwar v, Gobind, 385, 527, 528, 530.

— V, Rajkishore, 487.

Parol Bapalal v Mehta, 631.

Parshadi Lai v. Brij Mohan Lai, 924.
Parshotham v Keshavlal, 743, 745, 768.
Parsottam v Jagannatb, 562
Partab Bahadur v Chitpal Singh, 470.

— Singh V. Bhabuti Singh, 313, 315.

— — V Bhora Nathuram, 509.
Partap Chand v Makhani, 897

- - Singh V. Sant Kiier, 310, 402.

Parthasarathy Appa Rao v. Venkatadii

• Appa Rao, 443.

— Pillay V Thiruvengada,

920

ParMiising v Manichand, 410
Parvalavd v, Fakirnaik, 206
Parvdti V Bhiku, 655

— V Ganpatrao, 823

V Kiimaran, 985.

- - V Sivarama, 362

— V. Tiriimalai, 538, 571, 649, 856.

Paivaiibai v Bhagwant Vishvanath, 465,

• 495, 883

Parvatibayamma v Ramakrishna Rau, 284,

290

Parwati Bai v Chatru Limbaji, 830
Pashiipatmath v Pradyunna Kumar, 927.
Patel Vandravan v Manilal, 69, 78, 197,
205, 212, 905

Pathakkali t;. Ram Deni Ram, 306.
Pathal Singh v Sheobachan, 402.
Pdtnaloo Appalaswami v. E Moosalaya,

223

Pathan Alikhan v Panibai, 300
Pathumma v. Raman Nambiar, 80, 551,

971

Pattaravy v Vudimula, 570, 571.

Patayya v Venkamma, 796.

Paul V Nathaniel, 951

Pauliem Valoo v. Pauliem Soorjah, 369,

463

Pavani Subbamma v Anumala, 897.
Pawadeva v Venkatesh, 553, 732
Payappa v Appanna, 269, 273
Pearee v. Hurbunsee, 211.

Pearks e* Mosley, 870
Peary Lai v Chand uCharan, 415.

— Mohan v *Manohar, 931, 946

— — V Narendranath, 932

-- — V Narendranath, 931

Peda Venkanna w Sreenivasa, 416, 418,

419

Pedda Ammani v Zamindar of Marunga-

puri, 113.

Peddamuthulaty v N Timma Reddy, 491.
Peddamutlu v Appu Raw, 617
Peddayya v, Ramalingam, 325, 497.

— V. Venkatakrishnayya, 478
Peet Koonwar v. Chuttur, 945
Pemraj Mulchand v. Rajbai, 274.

Pern Singh v. Partab Singh, 431, 432.

LVIII

TABLE OF CASES.

Perera r Perera, 882 |

Penaammani v Knshnaswami, 88, 209. i
Periakaruppan v Velayudhan, 388.

Chetty V Arunachalam,
363, 375

Penasami i' Penasami, 523, 565, 616, 860
Periaswami r Seetharama, 420, 421, 432,

436, 440

Perka‘'h Chunder v Dhunmonnee, 287 j
Permaul Naickeii v Potee Ainraal, 243,

281

Perraju i Sitarama, 488
Perrazu v Subbaryadii, 57, 262, 381, 382,
383, 448, 527, 528
Perry i Mernt, 898 *

Pertab v Subhao, 882 '

— Narain t Tnlokinath, 807 ^

Pfrumal v Rama^^ubramaniam, 311 |

Pennnal Ammal r Periimal Naickor, 555, i

865 ;

Pe^tonji V Bdi Meherbai, 421 I

Pctdiiibiir V Hiiri‘^h Chunder, 568
PetherpeniiTidl r Muniandi Servdi, 956, I

957 I

Peltachi Chetly i Sivagin 425, 430, 431
Phoolba«i Koonwai v Lalla logeshuf, 387,

188 I

Phool Kunwai i Riklii Rani 776

Phiilchand v Lakkii, 866

Phukar Singh v Ranjit Singh, 740

Pbulwanti Kunwai v Janesliar, 313 i

Phundan Lai v Aiyaprithinidhi, 919

Phiindo V Jangi Nath, 248

l^iare Lai v Hemcband, 723

— — i; Lajjia Ram, 310

Pic ha Pilldi r Kathaperumal, 467
Pichappd Chettiar i Chockalingam, 398,

399

Pichayya v Rattamma, 950

— V Sarvayya, 577 '

Pichiivayvan v Subbayyan, 249 '

Piers I Piers, 174 1

Pilu r Babaji, 278 793, 794, 795, 799, 801 |

Piramanayaga r Ariimuga, 660
Pirojshah v Manibhai, 845 !

Pirsdb Valad r Giirappa Basappa, 274,

880

Pirtbee Smgh i Court of Waids 98, 666

— — r Mt Sheo, 98

— - - V Ram. Raj Koer, 830, 831 |

Pirthi Pal V Jewahir Singh, 371, 5.30

— — r Rameshwar, 386 j

Pitam V Ljagar, 3.54, 402 |

Pitainbar Ratan**! v. Jngjivan Hansraj, |

146

Pitamber r Nishikant, 54
Pitchakkuttiya v Doraiswami, 314
Pittapiir rflse, The Firsty see Venkata Surya

V Court of Wards

— — — Second, see Rama Rao

V Raja of Pittapur.
Piyarelal v Chunilal, 568.

Pokarmull, In the goods of, .359
Pokar Singh v Dulari Kunwar, 806.

Pokhan Dusadh v Mt Manoa, 84
Polepeddi Venkatasivayya v Polepeddi
Ademma, 291.

Poll V Nerotum, 659
Pollard 1’ Rouse, 309
Ponnambala v Sundarappayyar, 510, 511
— / Periannan Chetty, 473, 934,

935, 936

Ponnappa i Pappuvayyangar, 416, 418,
419, 435, 463, 468.
Ponnan Rao t Lak-hmi Narasamma, 307
Ponnusami v Thatha, 467, 495
Ponnuswami v Doraiswami, 102
Poorendra Nath Sen t Hemangmi Dasi,

547, 904.

Popat Virji V Dainodar, 793
Pothi I Naganna, 555
Pounder, In re, 898
Prabh Dayal r Ralla Ram, 476
Prafiilld Chundui Mullirk v Jogendra,
891, 916, 917, 922

Prafulldkamini r Bhabani Nath, 802
Prag Naiciin i Mathura Pra«ad, 801
Prahladh i Lik hmunbutty, .569, 570
Praiabala i Nitvarfioyee. 882
Praka''hrhiindra i Sub >dh Shundra, 944
Pramada Nath v Ramani Kanta, 388
Pramathanalh v Bhidian Mohan, 808, 812,

814

Pramatha Nath Mulluk i Pradyunma
Kumar, 525, 927, 942 944
Piamathanath r Suprakash, 908
Piamild i ( handra Shekar, 705, 706
Pramodanalh i Raiani Kant, .389
Pranjivan i Bai Bikhi, 619, 657
7 Bai Reva, 658

Pranjivandas i Devkuvarbai, 742, 767, 779
Pranjivan Dd" v Idiharani, 525, 528
Pranjiwan i XhMiidin, 526, .527
PrankiKm i Molhooramohun 377, 579
Prankrishna Surma, In re, 299^

Pran Mohan Das i' Hafi Mohun Das, 145
Prannath r ( alishunkur, 462

/ Surrut, 701, 702, 709, 710
Pranvullulih v Deocristin, 26.3, 416
Prasaddas ? Jagannalh, 914
Pratabnara>an i Court of Wards, 467
Pratap Chandia v Jagdish Chandra, 273
-- Ca\ri V Mulshankar, 726

Mull 7 Dhanabati, 543, 544, 546,
573, 715

— Narain i Shiamlal, 468
— Singh V Agarsingji, 211, 213, 234,
235, 257. 269, 277, 908
— — r Dalipsingh, 544

Pratul Chandra v Puma Chandra, 568
Prawankisson v Muttoosoondery, .548
Prayag Dass v Kriparam, 942

— Das V Srirangacharyalii, 946
— Doss V Tiriimala, 945, 946
— Sahu V Kasi Sahu, 415
Premchand v Hulashchand, 824, 825.
Premdas v Sheo Prasad, 930
Prem Devi v Shambunath, 288

TABLE OF CASES.

UX

Prem Kuar i Banarbi Da^i, 305,

— Nath r. Han Ram, 922.

Premo v. Shionath. 915
Pritchurn v. Soojun, 251
Pritkoer v. Mahadeo Per^had, 337
Probodh Lall v Harish Chandra, 286.
Promodekumar Roy v Kali Mohon, 952.
Promotha Nath Roy i. Nagandrabala, 840,

883

Profeanna Deb r. Bengal Duai’^ Bank Ltd,

943, 944.

Promotho v Radhika, 916, 926

943, 944.

Pio&onno t. Barbosa, 837, 839

— Coomar v Tariucknath, 886
Profeonno Kumar v Sarat Sho&hi, 762
Prohunno Kumari v. Colab Chand, 473,
917, 927, 929, 930, 938.
Pro&unnomoyee v. Ramsoonder, 273
Protapehandra v Brijnalh, 915
Protopchandra v Jagdishchandra, 850
Provobati v. Sarojini, 908.

Public Prosecutor v Kannammal, 74
Puddo Kumaree v Jiiggut Kishore, 111,

2.56

Pudiava Nadar v. Pa\anasa Nadar, 19, 45,
177, 726, 817

Pudma Coomari v Couit of Wards, 232,
257, 631, 711

Pudmavati v Baboo Doola, 615
Pujari Lakshmana Goundanv Subramania,

915

PtiUaiah V. Varadarajulu, 806.

Punchanun Mullick v. Sib Chunder, 571.
Punjab National Bank i Jagdish, 393,

532

Punna Bibee v. Radhakissendas, 348, 543,

544

— Bibi V Keshub Raj, 927
Punnammii v Perrazu, 814
Punnayya v. Virarvna, 307, 314.

Punni V, Sobhi, 801
Punniah v Kesarmal, 401
Punnuswami v. Vecramutlii. 308
Puran Atal v Darshan Das, 915
— Dai V. Jai Narain. 781
— Lalji V. Ras Bihari. 942
Puraviya v Poonachi, 915.

Purmessur v, Mt. Goolbee, 478
Puma Chandra v Sarojini. 545, 547, 548.
— — Sashi V Kalidhan, 894,

897

Purnananthachi v. Gopalaswami, 554
Purnayya v Basava Kotayya, 401
Purnima Debya v. Nandlal, 557. 572
Purshotam Das v. Bai Mam, 153, 189.
Purshottam v. Venichand, 242, 282.

— Das V, Rukmini, 835
Pursid u. Honooman, 544.

Pursottam Das v Gobind, 886
Pursut V. Pasut, 811.

Purtab Bahadur r. Tilukdharee, 379.
Purushotama v. Brindavana, 299, 516.
Purushotham v Atmaram. 570. 571, 572.

Purushothamdas i. Purushothamdas. 144,

146, 150.

Purusottam v, Janki, 357

Pushpavalli Thayarammal r Raghaviah

Chetty, 836.

Putanvitil Teyan v Putanvitil Ragavan,

821.

Puthisseri Mamyanoor v Thozukdl, 970.
Putlabai V Mahadu, 207, 241, 301.

Puttoo Lai V Raghubir, 485, 494

Puttu Lai V Parbati Kunwar, 208, 248,

439.

Pyare Mohan Bo^e v Kedarnath Roy, 388.

Q

Qucidir Baksh v Hakani, 957.

Queen u. Barnardo, 303, 304.

— V Munnath Achari, 826

R

R V Bezonji, 303
R V Bhungee, 304
R. u^Gyngall, 304.

R u. Karsdn, 72, 187.

R V, Manohar, 72.

R. V Marimuthu, 821.

R, V. Nesbitt, 304
R. V. Sambhu, 187.

R. V Shooku, 304.

Rab Prasad v. Chhote Miinwan, 467.
Rabutty v, Sibchundei, 745, 777, 908.
Raccho Kunwar v, Dharum Das, 375.
Rachava v. Kalingapa, 618, 619, 620. 667,
671, 682. 683

Rachawa v Shivayogapa, 838
Rachottappa v Konhei Anna Rau. 386
Rachhpali v Chandresar, 562
Radha v, Biseshur, 747, 748.

— V, Rajaram, 705

— Bai V Anant Rao. 846
— Churn v Kripa, 376, 572.

— Hambirrao v. Dmkarrao, 229.

— Kant Lai v. Nazma Begum, 362,

495

Kisheii V Jag Sahu, 487.

■ — JVJadhab v. Rajendra Prasad. 217.

. 779, 781.

— Madhtib f>. Manohur, 838.

— Mohan u. Harai Bibi, 244 '

— Mohun V Ram Das, 815, 816
— Pershad Mullick v. Ranimom, 887,

891, 908.

— Prasad v, Ramkhelawan, 431
— Ram V, Brinda Ram, 768, 770, 800.
— Shyam v Joya Ram, 795
Radhabai v, Nanarav, 359.

Radhakisheen v. Jado Sahu, 789.
Radhamonee v Jadubnarain, 273.
Radhanath Mukerji v Shaktipado Mukerji,

170. 944.

Radharam v. Gangaram, 496.

Radharaman v, Gopal, 694, 699, 700.

1.x

TABLE OF CASES.

Radhe Ldl v Bhawani Ram, 654
Raclho Prashad v Esuf, 389
Rdghdvdchan Shrinivdsa Rdghdvachari,

306, 867

Raghavalu v Kausalya, 741, 812
Raghdveiidra v Jayaram, 170, 2*16, 249
— Rao t' Bhima, 911
Raglio V /aga, 469
Ragho Gobind v Balwant, 864
Raghoji Rao v Lak^hman Rao, 844
Raghubans v Bhagwant, 836
Raghubans v Indrajit, 471
Raghubaniind Do«s v Sadhu Churn Doss,

95, 262

Raghubar Dayal v Bhikya Lai, 314
— - V Ram Dulare, 373

Ragluibir v Moti, 559

— Singh V Jethu Mahton, 817
Rdghiimull V Luchmondas 392
Raghiinada v Chinnappa, 942
Raghunadha v Brozo Kishore, 95, 219, 224,
226, 230, 231, 233, 236, 245, 268, 279,
337, 339, 390, 732
Raghiinandan v Moti Ram, 438

— r Parame‘«hwar, 386 ,

— V TuKhi Singh, 800, 801
— Prasad v Motisingh, 439
— Sahii V Badri Teli, 407, 410,

416.

Raghunandandas v Chedram, 411
Raghunath v Ganesh Das, 939
— V Govind, 482
— V Laxmibai, 619, 656

— V Munnan Misr, 631
— V Purnaniind, 943
— V Sri Narain, 452
— V Thakuris, 813
— Pra'^ad v Deputy Commission-

er, Partabgarh, 555,
871, 897, 903

— — V Gobind Prasad, 917
Raghunathji v The Bank of Bombay, 308,

395, 396, 400, 450
Raghupati v Tirumalai, 813
Raghuraj Chandra v Rani Subhadra, 257,
263, 264, 670, 720
Rahi V Govmd, 187, 647, 648, 822
Rahimatbai v Hirbai, 100
Rahimbai, In the goo'^s of, 100
Rahimbhoy v Rehmoobhai, 315
Rai Bahadur v Bishen Dayal, 88

— Balkrishna v Mt Masuma Bibi, 308

— Bishen Chand v Asmaida Koer, 444,

532, 870, 890

— Bishunath v Chandrika, 783

— Kishori V Debendranath, 555, 903.

— Nursingh v Rai Narain, 375

— Rajeshwar v Harikishen, 745.

— Shadilal v Lai Bahadur, 337, 373

— Sundari v Benode Behary, 941

Raj Bachan Singh v Bhanwar, 658, 661

— Bahadur v Achumbit Lai, 290

— Chunder v Sheeshoo, 780

— Coomar v Bissessur, 244, 247

Raj Coomaree v Nobocoomar, 211, 284.

— Fateh Singh v Baldeo Singh, 651,

813.

- Kishore r Jaint Singh, 820

— — V Madan Gopal, 432, 485

— Kuer V Dindayal, 476

— Lukheo r Gokool, 778, 790, 794, 795.

— Singh V Seth Kishanlal, 475
Raja V Siibbaraya, 262

— Dei V Lined, 813

— Jogindra v Nityanund 854, 856

— Madhii'^udan v Khe^tabusi, 851

- Makund v Sri Jagannath, 230, 240,

249

— Parthasarathy v Raia \ enkatadri,

ITl

— Raghiinandan v Kumar Ghananand,

435

— Rdjeswan v Subramania, 927

— Ram Tewaii v Luchman, 387, 460,

467, 507, 509, 511

— Row Bochee i Venkata Neeladry,

827

— S(‘trucheila n Raja Setrueherla, 382

— Sirnhadn Appa Rao r Prathipatti

Ramavya, 389

- Udaya v Jadab Lai, 855

— Venkatappa v Ranga Rao, 218, 223

— Vurmah v Ravi Viirmah, 73,941,942
of Arakal v Churia, 978, 986

Kalahasti v Prayogdossjee, 447

— V Venkatadri, 851

Ramnad v Chidambaram, 421, 422,

437, 843

— I Sundiapandia, 357, 870,

887.

Vi/ianagaram r Secretary of State,

299

Rdjabala v Sbyama Charan, 707
Rajaballabh v Bishiin Prasad, 307
Rajagopal v Muttupale»n, 313

— V VeiTaperumal, 409, 578
Rajagopald v Ramanuja, 818

— 1 ’ Seshayya Naidu, 362

— Iyer v Raman Chettiar, 397
Rajagopalan v Ramamurthy, 808
Rajam Bhatta v Singarammal, 943
Rajamma v Ramakrishnayyar, 375
Rajangam v Rajangam, 374, 555, 566, 571.
Rajanikanta v Bashiram, 362

Pal V Jdga Mohan Pal, 363,
378

— — V Sajani Sundari, 829,

834

Rajani Nath t> Nitaichandra, 38, 44, 45,
54, 64, 178, 537, 646, 647, 703.
Rajaram v Ganesh, 866, 942, 943

— V Kothandapani, 316

— V Raja Baksh, 422, 423

— V Pertum Singh, 356

Rajbulubh v Mt Buneta, 462
Rajch under v Goculchund, 98, 708.
Rajcoomaree v Gopal 525
Rajdeo Singh v Mt Janak Raj, 84.

TABLE OF CASES.

LXL

Rajender v Sham Chund, 554, 923. I

Rajendra v Rani Raghiibans, 845, 853. |

Kumar v Brojendra, 570, 571,

574. I

— Lall V Raj Coomari, 899, 900,

918.

— Prasad v Gopal, 198, 210, 214, i
215, 217, 910. I
Rajendralal v Mrmalini, 882. |

Rajendro Naram v, Saroda, 205. j

— Nath V Jogendro Nath, 287,288. |
Rajeppa v Gangappa, 678, 757.

Rajeshwar v Mangni Ram, 432.

Rajeshwar Mullick v. Gopeshwar, 942.
Rajeswaree Debi v Jogendra Nath, 917, |

919 ,

Rajkishfn v Ramjoy, 75 I

Rajki shore v. Gobind Chiinder, 707 '

— V. Madan Gopal, 353, 362, 363,

432, 460.

Rajkrisio v Kishoree, 278
Rajlakshmi v Katyayani, 807.

Rajlucky v Bhootanalji, 826
Rajnarain v. Heeralal, 341, 535
Rajpah Kiinwar v Sarju Raj, 84, 806
Rajrani v, Gomati, 6,59
Rdjrup Kiinwar v Gopi, 820
Raju v. Ammani Ammal, 50, 741, 758.

V. Arunagiri, 537, 538, 649

— V Nagammal, 276

— V. Ramasami, 727
Rakhmabai v. Radhahai, 217, 227, 266.
Rakmabai v. Tukaram, 626, 665
Ralla Ram v. Atma Ram, 444, 494.

— — V Gobardhandas, 475.

Ram V Chand, 150.

— Adhar v, Sudesra, 669

— — V Ram Mausher, 799.

— Anta^ V Beni Singh, 403.

— Asre Singh Ambica Lai, 787, 819.

— Autar V. Raja Muhammad Mumtaz,

314

— Avtar V. Chowdhuri Narsingh, 448.

— Bahadur v Jagernath, 765, 897.

— Baran v Kamla Prasad, 604, 628

— Bilas V Ramyad, 474, 480, 481, 494
— Bujawan v. Nathu Ram, 487.

— Bunsee v. Soobh Koonwaree, 148,

300.

— Chand v Aiidaito Sen, 145

— Chand v Uttam Chand, 942, 943.

— Chander v Md Niir, 434.

-- Chandra v. Sukhdeo, 861

— — V Tukaram, 572

— Charan v Ajudhia, .500, 574.

— — V Bhagwandas, 518. I

— — V. Gobmd, 940 |

— — V. Mihin Lai, 476.

— — V Rahim Baksh, 678. *

— — Das V Naurangi, 934, 935, i

936.

— Coomar v. Jogender, 924. '

Ram Das v Lachman Das, 825.

— — V, Ram Sewak, 745.

— Deo V Mt Gopi, 415
— Dhan v, Prayag Naram, 923, 925,

926.

— Dm V. Mansa Ram, 311.

— Ghulam v Nandkishore, 438.

-- Gopal V Baijnath, 400

— V Naram Chandra, 743, 750,
755, 762.

— — V Tulshi Ram, 555.

— — Lai V. Arpna Kiinwar, 880.

— Jas Agarwala v. Chand Mandal, 476.
— Kali V G^opal Dei, 741, 756.

— Kannye v. Meernomoyce, 652.

— Karan v. Baldeo, 428
— j Kaiir V Atma Singh, 903
— Kawal V Ramkishore, 781.

— Khelawan v Ram Narcsh, 487.

— Kisan V Damodar, 493
— Kishan v. Tunda Mai, 374.

— Ki‘.hen v Baldeo Koeri, 508.

— — V Ganga Ram, 386.

— - Rai V Chhedi Rai, 421.

— Kissen v Sheonundan, 557

1 — 'ICriphna v Padmacharan, 939.

I — — V, Vmayak, 386, 435, 436.

— Kuher Pande v. Ram Dasi, 402.

— Kumar v Bhagwanta, 831, 832.

— Kumari, In re, 102.

— Labhai v Durgadas, 301, 657.

— Labhaya v Nihal Devi, 825, 836.

— Lagan r Nandipat, 935
i — Lakhan v Ramlogan, 942
j — Lai V Bidhumukhi, 899.

— — V Sitabai, 555

— — Sett V, Kanai Lall, 870, 890, 892,

910.

— — Shookool V Akhoycharan, 179.
— Lall V. Debi Dat, 556.

— V Mt. Jawala, 656, 832
— Lochiin V Rughoobur, 571
— Mohan v, Mulchand, 501, 574.

— Nandan Lai v Janki Koer, 847, 858.
— Naram v, Har Narinjan, 78.

— — V Makhna, 564, 568.

— — V Maiilvi Muhammad, 951.

— — V. Nandrani, 485.

— Chowdhury v, Pankuer, 577,

. • • 580, 712.

— — Singh V Pertum Singh, 337,

341, 355.

— Narayan Singh v. Ram Saran Lai,
• 908.

— Nath V Chiranji Lai, 395, 396, 397,
400, 470, 475, 480.

— — V Dimi Chand, 677.

— — V. Sant Ram, 310.

— Nayak v, Mt. Rupkali, 788, 790.

— Ninmjun v, Prayag, 554. 567, 898.

— Nundun Singh v. Janki Koer, 77.

— Ooitiim V Oomesh, 443
— Parkash v. Anand Das, 933, 939, 946.
— Parshad v Idu Mai, 637.

lAII

TABLE OF CASES

Ram Peari i Uari Diitt, 545

— Perga^h v Mt Dahan Bihi, 79, 89,

93 95, 551, 627

— Pershdd V Ldk^^hpali, 557 569
— Plan V Diwdn Shiv Ram, 292

— ?> Krishna, 903

V Nand Lai, 935

— Prakash v Anand Das 9H

— Prasad v Bishambarnath, 400. 477

— — Gupta V Ramkishen, 915
-- Raghiibar v Dip Narain, 477

— Ranh ij ay a v Parmatmanand 819

— Ranjan v Ram Narain, 288

— Ratan r Gangotri, 800, 801

— - i Lachman Das, 448

— - Rekha i Ganga Prasad, 427 428

429

— Sahai V Parhhu Dayal, 494

— Sahye i' Lallalaljcp, 550, 553

— Saran i Bhagwan, 438

— — V Tek Chand, 537, 647

— Sdiup I Mt Bela, 872, 898

— — i Ram Dei, 807

— — La] V Shah Latafat, 314

— Sewdk V Jamiina Prabdd, 793

— Shanker v Lai Bahadur 775 *

— Sia V Bua, 161, 631

— Singh V Mt Bhani, 726

— Sounder v Ram Sahye. 550, 553, 821

— Soondiir v Surbanee Dossee, 215

211

— Sumeran i Kodai Das, 668, 671

— Siimran Prasad v Gobind Das, 145,

191, 768, 770, 784. 785

— Sumran Prasad v Shyam Kuman

402, 478, 778, 785, 788, 807, 808

— Sumran Singh v Mahabir Sewak

649

— Sundari Dassya i' Benode Bebarv

9U

— Sunder Lai r. Larhhmi Narain, 307

471, 479, 513, 819

— Surat V Hitanandan, 779. 781

■ — Swamp i’ Thakiir Ramachandiaji

922

— Tawakal i' Mt Dulari, 813
Rama v Daji, 808

— V Ranga, 781
— Aiyar v Bbagavathi, 506

— — V Meenak^hiamivdl, 196 562

885

— Iyengar t Secretary of State 415
— ^ Kurup r Shekara 986
— Nana r Dhondi, 7^9, 803
— Nand t Snrjiani, 626

Raja Thavar v Pappammal, 824
— Rao V Hanumantha, 429

— — r Rajah of Pittapur, 71, 364.

821, 825, 848, 860 862

— — V Thimmappa, 871.

— — V Venkatasubbayya, 563
— Reddy t Ranga Dasen, 928
— Row V Kultiya, 628, 812

— Vadhyar v Krishnan, 981

Rama Varma v Raman Nair, 942
I Ramabai v Harna Bai, 204, 726

V Trimbak, 826, 829, 833
Ramabin Santu r Dajibin Nani, 809
Ramachandra v. Akella, 851

V Bhimacharya, 202, 883

V Gopal, 170, 246

V Murlidhar, 233

— V Nanaji, 207

— V Parameswaran, 917

I — V Vijayaraghavulu, 777

, — V Yamuiii Bai, 238

I Ramachandra Rao v Ramachandra Rao.
i 908

1 Ramachar v \ enkatrao, 911, 944
I Ramacharya v Ananlachai>a, 571
Rarnaiogayya v Jagannadhan, 310, 311
' Ramakanta Das v Shamanand, 70
Ramakkdl r Ramasami, 654
' Ramakotayya v Sundara Ramayva, 522
Ramakottawa v Viraraghavayva, 516, 803
! 805

I Ramakrishna v Kasivasi, 306

I — V Lakshminaiayan. 206

I — V Manikka, 380, 392, 393,

400

! — V Paramesvara, 527

I — V Rakmavathi, 774

[ — V Subbamma, 170, 219

I -- V Tnpurabai, 277

I — Ayvar v. Paramesvara, 530

j — Pillai V Tirunarayana Pillai.

288

I Ramakristna r Subbakka, 296
i Ramalakshmi v Sivanatha, 25, 69, 846,

855

Ramalinga v Naravana, 190, 464, 465,
484, 526, 561, 567, 572, 573
— V Pavadai, 38, 537, 538. 649,

' 651

i • — V Sadasiva, 208, 245^

I — V Sivachidambara, 482, 922

! — V The Vellore Mercantile

j Bank, 311, 401

I Ramalingam v Virupakshi, 554

[ — V Vythilingam, 939

I — ■ Pillai V, Muthayyan, 475,

i 477

I Ramamani v Kulandai, 174, 178
I Ramamirtha v Gopala, 865

' Ramamurthy v Bhimasankaran, 794, 804

I Raman v Karunakara, 931, 937

— V Muthu, 94

Ramanadan v Rangammal, 840, 841, 842
— Chettiar v Vava Levvai, 900
Rama Nand v Cobindsingh, 494
Ramananda v. Raikishore, 705
I Ramanarsu v Buchamma, 823
I Ramanath v Rajanimoni, 828, 831
I Ramanathan v. S Rm. M Ct M. Firm,
, 386

! — V Muriigappa, 928, 935, 941

— Chettiar v. Raja Sir Anna-
malai Chettiar, 310

TABLE OF CASES.

LXin

Ramanathan Chetty v, Yegappa, 398.
Ramanayya v Rangappayya, 446.
Ramangavda v. Shivaji, 169.

Raman KiAti v. Bevi Umma, 982.

— Menon r. Raman Menon, 976, 978
Ramanna v Venkata, 355, 495, 510.
Ramanooja v Peetayen, 319
Ramaniigra v. Mahasundur, 953.

Ramanuja v. Sadagopa, 958.

— V Virappa, 388.

Ramanund v. Raghiinath, 371.

Ramappa v Arumugath, 624.

— V Bangari, 44, 855.

— V, Sithammal, 645, 652.

— V Yellappa, 505, 519. 820

— Naidu V Lakshman Chetfi, 918,

924.

Ramarayiidii v Sita1ak«hmamma, 836, 843.
Ramasamayyan v. Viraswami, 411, 435.
Ramasami v Alamclu, 957

— f’ Mangaikarasu, 472. 771, 776,

783.

— V Narasamma, 626

— V. Siindardlingabdmi, 38 173,

Vn, 262, 853 854, 855

— V lllaganatha, 419

— V Vengidusarni, 191. 464, 483

— V. Vencataramaiyan, 267, 276

— V Venkatarama, 502, 516
— Naik V. Ramasami (?hetti, 850

Ramasamy v Seshachella, 491
Ramaseshaiya v, Bhagavat, 359
Ramasubramanid v, Sivakanii \mrad1. 409,

413. 415

Ramaswami v Aldgiriswami, 571
— V Gopalan, 986

— « V. Kasmatha, 310

— V. Rajii Padayachi, 364

— V. Venkatfcsam. 579 580, 686

— Chetti V Pdlaniappa, 376

— * — V SnniNa'-d. 192. 393.

394.

— lyen v Bhaga\ali Ammal, 219,

249.

Mudaliar v. Sellatammal, 792
Ramdthai Vadivelu v Pena Manicka, 954
Ramawati Koer v Manjhari Koer, 834.
Ramayya v Bapanamma, 800, 801, 802.

— V Elizabeth, 91

— V. Lakshmayya, 798, 811

— V. Narayyd, 802

— V. Ranganayakammd. 855

— V Venkataratnam, 386, 119

Rambhat v, Lakshman, 513.

— V. Timmayya, 145.

Rambromo v Kaminee, 98
Ramchandras case, see Ramchandia i

Vina) ak

Ramchandra v Damodhar. 389. 575
— V. Hanamnaik, 648.

— V. Jung Bahadur. 415.

— V. Kashinath, 931.

— V. Krishna Rao, 299.

Ramchandra v, Mahadev, 464.

— V, Ramabai, 911.

— V Ran j It Singh, 926.

— V. Sagunabai, 830.

— V Sakharam, 825.

— V. Savitribai, 838.

— V Venkatrao, 844

— Bhagawan v. Miilji Nanabai,

230.

— Mai land v. \ inayak, 34, 47,

49, 58, 61, 87, 157, 158, 160,
161, 162, 168, 593, 629, 632,
633, 635, 636, 637, 639, 689.
Ramcharan v Bhagwan, 479, 518
" r* Kanlisher, 388
Ramcoomar v Ichdvomoyi Da‘-i, 781, 784,

792.

* — V McQueen, 956.

Raindd^ Copaldas v Baldevdasji, 688.
Ramdebul v Milterjeet, 390, 462.

Ramdhan v Dalmir, 733.

Ramdiitt r E D Sas^on. 810.

Ramesh Chundra v Sa*-! Bhu^-an, 794, 804.
— - — Das V. Maharajd Biren-

dra Kishore, 205, 297.
-f — Sinha V, Md Elahi
Baksh, 96.

Rameshwdr v Lachmi Piasad Singh, 531,

903, 907.

— V Mt. Gdnpati Den, 669, 814.

— V Provabati, 787, 792, 809,

810.

— Baksh r. Balraj, 908

— Kuer i». Sheolal Upadrej’a,

896.

Ramgopal Ghose v Dhirendra Nath, 452.
Rdmgouda v, Bhau^^aheb, 517, 786, 803,
804, 805, 806.

Ramhdri Sarma v Trihiram, 577, 578.
Rdmi Redd, v Gangi Reddi, 38, 51, 57,

636, 678.

, — — V Rangamma, 226.

I Rdinidh i Mahaldksh mamma, 276, 374.
Ramien v, Coondummal, 826
Rammeedi v, Janakiramayya, 485.

Ramji V Ghamau, 227.

— XK Lachu, 940

— Ram V. Sahg Ram, 402
Rdmkali*i;. Khamman Lai, 565
Ramkisan r, MJ Abdul Sattar, 444
Ramkishen v Mt Stiimutee, 266, 277.
Ramki shore i Bhoobunmovee. 462

— V. Jainara\an. 69. 242, 251,

2*2, 284 501. 502, 503, 511,

512, 558

Ramkoomar r Kishenkiinker, 461.

Ramkrichna v Chimnaii, 246

Ram Krishna v Kau‘‘aha, 769, 797, 799,

800, 802.

— I Naravan, 408

— v. Rattanthand, 397, 399, 471,

477, 485.

— V, Shamrao, 233, 235.

E

LXIV

TABLE OF CASES

Ramkulam v. Kaila^h, 454
Ramkunhaee v Biin^; Chuncl, 462.
Ramkunwar v Amarnath, 839
Ramkiinwar v Ram Dai, 837, 839.

Ramkutti v Kalatiiraiyan, 491

Ramlal v Lakshmi Chand, 391

— V Sitabai, 555

Ramnad case. The, sre ('ollector of Madura
t Moottoo Ramalinpa,
Ramnad case. The ( 24 Mad , 613) , 853, 854
Ramnath r Dur^?a, 705, 707

— i' Goruram, 381, 382, 385, 527 |

528 530 I

— V Ramrao, 386 '

— V Sakabn, 94 ? !

Rampershdd r Sheorhiirn, 359, 360, 362, ’

371, 377 i

Rampertdb r I'ooliliai, 308

— V Gopeekihen, 112 1

Rampbal v Pan Matj 631
Ramphul Sint 5 h i Dop; Narain, 422, 429, '

434, 435 ,

Rampiyar r Dev a Rama, 172
Ramprasdd v Radhaprasad 351, 355, 711, '

Ramprasanna t Secy oi Stale, 930
Ramrao v Yesliwdiiliao, 845, 816 ^ '

Ramsaran v Mahabir, 173 '

Ramsinph v Ram Nath, 357
Ramsoonder v Taruck 941 I

Ramianoo v Ishurchunder, 497 |

Ramtoonoo v Ramgopaiil, 877 878, 914
Ramil Chelty ?; Panchamma, 555
Ramvad Pandav v Rambihara 785, 813 '

Ram/an v Ram Dai>a, 812
Ran Biidi v Japalpal, 726
Rana Sheonatli i Badan Sitipli, 96 ,

Ranchod Da«^ v Krishna Dass, 447
Raneemoney Dasi v Premrnoney, 899
Ranpa Aiyar t Snniva‘-a 953
— Rao V Rajagopala 313
Rangarhari v Narayana Aivar, 371
Rangacharva r Guru Revti 929
Rangammal v Fdiammal, 830
Ranganatha v Bhagirathi, 868 869, 870

— 7 Naravana'^ami. 568

— 1 Ramaswami, 508 ;

Ranganayakamma r Alwar Chetti, 205,

208, 252, 254, 283

Ranganayiki v Ramanuia, 147, I 9 O, 476
Rangappa 1 Rangaswapii, 949

— Naick V Kamti ‘Nau'k, 793, 799
Rangappayya v Shiva, 836, 843
Rangasami v Kri‘^linayyan, 348, 505, 506, 1

V 722 I

Rangasayi v Nagaratenamma 539, 540, i
561, 563, 565 I
Rangaswami v Krishnaswami, 947 I

— V Narhianna, 489, 517, 765, !

768, 793, 794, 795, 796, |
797, 798, 800, 801, 802, i
804 j

' — V Sundararajiilii, 568. I

Rangayana v Ganapabhatta, 493 j

Rangayya v, Thanikachalla, 454, 455, 726 '

Rangbhai v Sitabai, 359

Rango Vinayak v Yamunabai, 830

Rangubai v Bhagirthibai, 207, 240, 241,-

255.,

— V Subaji Ramchandra, 835
Ram Annapurni v Swaminatha, 843

— Anund Koer v Court of Wards 812,

813

— Bhdgwan Koer r J C Bose, 88, 89.

— Bhiivaneshwan v Secretary of State,

807

Dassya i Golapi Dassya, 701
Kanno Dei r B T Lacy, 776

— Mewa Kuwar v Rani Hiild'^ Kiiwar.

777, 806.

— Mom Dossi V Rcdhaprasad, 870,

891

Ranjit V Radha, 656
— Lai V Bijoy Krishna, 218
Singh V lagannath, 942
Ranmal 1 Bai Shri Kiindan, 836
— Singji V Vadildl, 309, 310
Ranodip Singh v Paime‘‘hwar, 508, 51 1
Ranon i Kandoji 537 538, 649
Rao Balwant Smgh 1 ’ Ram Kishori, 34
53, 59, 357, 460, 751

— Gorain v Teza Gorain, 341

— Karim v Nawab Mahomed, 790 813,

815

Rao)i 7 Anant, 573
— Thakaram v Hemrai, 301
— Valad 1 ’ Kunialal Hiralal, 647, 805
Rarirhan v Peiadii 615
Rashidunnissa 7’ Muhammad 315
Rashmohini v Uinesh, 881
Rasik Lai Mandal 7 ; Smgheswar, 111
Rasul V Ram Snran, 656
Ratanchand v Anandi Bai, 178
- - 7’ J avail er Chand, 780

Ratan Smuli v Tanain Smgh, 847
Ratansi Moiarji v Admmi'=tiatovGeiieial
of Madias 91, 102 179
Rathina Sabapathy v Gopala Odavii, 538.

651, 823

Ralhnam i Si\a Subramania, 464, 183

917

Rathnammal 1 Gov mdaswanii, 302
— V Siuidaram, 447
Rathnathanni v Somasnndara, 141
Rati Ram v Niladhar, 404
Ratna 7’ Viiayaranga, 360

— - Chettv V Narayanaswami, 795

— Miidaliar v Ellammal. 413

— - - 7’ Kridma Mudaliar, 582

690, 691

Ratnam v Govindaraiulu, 471, 480
Ralnamasari v Akilandammal 291
Ratnasiibbii 7’ Ponnappa, 631
Ratnendralal v Corporation of Calcutta

929

Rattamma v Seshachalam, 825 838
Rattan Chand v Ram Kishen, 298
— Lai V Baijinath, 217
Raujkrisno v Taraneychurn, 461

TABLE OF CASES.

LXV

Ravanni v. Thankunni, 985.

Raveneshwar Prasad v. Chandiprasad, 486,
• 785.

Ravji V, Mahadey, 958.

— Andu V. Ram Krishna, 805.

— Janardan v. Gangadharbhat, 507.

— Valad V, Sakuji Valad, 651.

— Vmayakrav v. Lakshmibai, 207, 267,

274.

Rawat Sheo Bahadur v. Beni Bahadur, 211.

— Urjun V. Rawiit Ghunsiam, 77.
Rayacharlii v. Venkataramaniah, 463, 466,

491.

Rayadur Nallatambi v. Mukunda, 354
Rayakkal v Subbanna, 467.

Rayalu Aiyar v Vairavanchetty, 427.
Rayappaii v. Kumaran, 979.

Razayet Hoossein v. Doobchand, 838.
Reade v. Krishna, 297, 304.

Reasiit V Chorwar, 388.

Regella Jogayya v. Nimushakavi, 792.
Rekha Thakiir v. Ramanadhan, 791.

Rengu V. Lakshman, 360.

Renka v Bhola Nath, 765, 768, 815.
Retki V Lakpati, 5tf, 253.

Rewan Persad v Radhabai, 373, 555, 557,
567, 615, 617

Rex V. The Superintendent and Registrar
of Marriages, Hammersmith {Ex Parte
Mir Anwariiddin), 97
Riasat All v Iqbalrai, 467
Richards v. Delbndge, 868
Rikhdeo v Sukhdeo, 746, 811
Rindabai v Anachaiya, 742, 767, 768
Rindamma v Venkataramappa, 653, 654
Risal Singh i Balwant Singh, 289, 807,

808

Rivett-Carnac v Jivibai, 776.

Roddy V Fitz-tHTald, 905
Rodha Ram v Amarchand, 471.
RojomoVee Dassee v Tioylukho Mohiney.

• 870, 891

Rome«'h Chundra v Soojo Coomar, 389.
Roopchand v Pookhiind, 618
Roshan Ah Khan v. Chowdri Ashgar Ali,

68, 76

— Singh V, Balwant Singh, 536, 646,

822.

— — V Har Kishan, 308.
Rottala Runganatham v, Pulicat Rama-

sami, 495, 520

Roy Radha Kissin v Naiiraian Lall, 811.
Royarappan Koyotan, 451.

Rubee v Roopshunker, 652.

Riidarrajii Venkayamma v Sitaramarajii,

486.

Riidra Prokash v Bholanath Miikhertee,

298.

Riidragouda v Basangoiida, 572.

— v. Prasangoiida, 568.
Rudrappa v. Ira\a, 621, 622.

Rukabai v Gandabai, 835.

Rukhab r Chunilal, 261.

Rukmani v, T. R. S. Chari, 189.

Rukminibai v, Laxmibai, 871.

Ruby at v, Madkowjee, 148.

Runchod Naran v. Ajoobai, 726
Runchordas v, Parvatibai, 7, 811, 812
Rungamma v. Atchamma, 57, 202, 208, 461.
Runganaigum v, Namesevoya, 247.
Riinganayakamma v. Ramayya, 860.
Rungathayee v, Muniswami Chetty, 836.
Runjit V. Koer, 557.

Rupa Jagshet v, Krishnaji, 914, 917.
Rupan V. TIukmi, 656.

— Rai V Siibkharan Rai, .562.
Rupchund V. Jambu Prasad, 210, 250,
^ 251.

— V Rakhmabai, 273.

Rup Naram v Gopal, 247, 288, 803, 820.
t — Singh V. Baisni, 615.

— — V Bhabiiti, 554.

Rusi Mendli v. Sundar Mendli, 578.
Russic V. Punish, 658.

Russoobai V Zoolekhabai, 626, 665.

Rustam Ah v Abbasi, 68
— Singh V Moti Singh, 781, 784.
Rutchepiitty v Rajunder, 53, 97, 604, 644,

671.

Riftree Bhudr v Roa Shiinker, 247, 277.

s

Sabdpathi v Somasundaram, 510, 515.

— V Thandavaroya, 499.
Sabbachand v Shamboo, 395, 481.

Sabhd Ram v Kishan Singh, 430
Sabir Hussain v Farzand Hasan, 18.
Sahitii t> Mr's F A Savi, 348, 543, 544.

943.

Sabo Bewa v Nuboghun, 287.

Sachmdra Kumar v. Hcmchunder, 525
Sachitananda v Baloram, 958.

Sadabart Prasad Foolbash Koer, 341,
444, 488, 492.

Sadananda v Baikunta Nath, 577.
Sadashjv v, Dhakubai, 507, 784, 791.

— V. Han Moreshvar, 250.

Sadashiv Dinkar v. Dinkar Narayan, 435.

— Waman v, Reshina, 212, 217.
Sada'^hivappa v. Sangappa, 313.

.Sadasivam v. Sandanam, 884
Sadasuk Janki v. Sir Kishan Pershad, 451.
.Saddha Singh *Mangal Singh, 557.
Sadho Lai v. Murlidhar, 298.

Sadi V. Baiza, 537, 538, 647, 649.

— V. Ram, 570.

— Ram V Artbi Singh, 299.

Sagarmal v. Bhikiisa, 452.

Sagarsingh v. Mathuraprasad, 476.

Saguna v, Sadashiv, 623, 678, 679, 681.
Sahabjit v. Indrajit, 75

Sahab Rai v Shafiq Ahmad, 743.

Sahadeo Das v. Raja Ram, 915.

— Naram v, Kusum Kumari, 79, 93.
Sahebgauda v. Basan Gouda, 568, 845,
854, 857, 860.

Sahodra v. Ram Babu, 669.

LXVI

TABLE OF CASES.

Sahu Ramchandra v Bhiip Singh, (Sahu
Ram^s case), 419, 428, 465, 466, 468,
472, 515

Said Ahmed v. Raja Barkhandi, 415
— — V Rajd Mahesh Pratab, 477.

Saidiinnissa r Riiqiiaiya Bibi, 298
Sailabala Deb v. Baikiintha Deb, 784, 785
Sainapdlli i, Sainapatti, 97
Sailhn, In re, 303, 305
Sajdni Sundari v Jogendia, 284
Sajid Ah V Ibad All, 882
Sakarlal v Bai Parvati, 437
Sakaram t Bdlknshna, 57, 677
Sakhdram v Devji, 449, 450*

— V Govind, 417
— V Han Krishna. 573
— V Sham Rdo. 538, 650
— V Sitabai, 52, 621, 622, 681,

682

— V Thama, 278, 799, 803
Sakhawat v Tnlok, 462
Sakinbai v Shnnibdi, 313, 314
Saklat V Bella, 90
Sakrabhai v Maganlal, 400, 793
Saladhur Jaman v Oojaddin, 71 <

Sala Mahomed Jafferbhoy t Dame Jan

bai, 881

Salamdt Khan v Bhagwat, 489
Salemma v Lutchmana, 50, 744, 745, 751,

755

Salig Ram v Mohanlal, 477
Salimullah v Probhat Chandra, 522
Saliibai Ganesh v Keshav Rao Vasiidev,

149

Samalbhai i' Someshwar, 392, 489
Sama Rao v Varnajee Vapiiji, 427
Samat v Amra, 610
Sambasiva i Venkatesvara, 745, 777

— Pillai V Setrttary of Stale,

687

Sambaya Seity v Riidrappa 395
Sdmbhii (Chandra v Kartn k Chandra, 694,

706, 711

Sambo Chundei v (^angd, 708
Sami Avyangar v Ponnammal, 427
Saminada t Thangathanai, 662
Saminatha v Piirushottamd, 938
— V Rangathammal, 837
Sammathiyan v Samindlhtjiyan, 319
Sammantha v Sellappa, 918
Samuasan v Anaichiammal, 141
Samiidrala Narasimlia i Samudrala Ven-
kal^i, 579, 580, 686
Samuvier v Ramasubbier, 555
Sandanam v Somasundaram, 362, 374
Sanford v Sanford, 898.

Sanival Das v. Kure Mai, 360, 374
Sanjivi V Jalajakbhi, 74
Sanka Krishna v The Bank of Burma, 308,
311, 395, 400, 450
Sankaralinga v. Kandaswamy, 445

— V. Official Receiver, 446

4) PaipaliiArar Dnrai Q^9

Sankaralingdm v Siibban, 72, 187

— Chetty V Kuppuswami, 310
Sankaran v Kesavan, 253, 254
— V Sreedharan, 983.
Sankaranarayana v Rajamani, 454.

I — r Tangaratna, 374

I Sankar Nath v Bijoy Geipal, 789
I Sdnkii V Piittamma, 730, 984
I Sankunni v Krishna, 982, 983
I — V Rama Panikkar, 974
I Sant Kumar v Deo Saran, 661
— Ram V Hiranand, 402
Santala Bewa v Badaswari Dasi, 94, 656,

832.

Santdppayya v Rangappayya, 170, 208,

252, 289.

Santu V Abbe Singh, 354
— Ram V Doddn Bai, 783
I Santona Roy v Advocate-General of

' Bengal, 945.

Santosh Kumar v. Ganesh Chunclra, 478,

785.

! Sanyasdvya t’ Miirlhenha, 409, 413
Sanydsi ('hardn v Asiitosh Ghose, 101

— -- V Krishndddn, 311, 395,

1 401, 469.

, Sarabjit v Indarjit, 853, 854

Sarah Sukh Das v Ram Prasad, 917
Sarada v Mohananda, 378

— ('haran v Durgaram, 403.

— Prasad v Rama Pati, 217
— P Roy V Umakanta, 96

Saradindu v Sudhirchandra, 882.
Sarajiibdld i Jyolii Moyee, 871, 873 895,
897, 903, 908.

Saraswdti v Mannu, 650

— V Sheoratan Kuer, 834 836
Sarat Chunder Dey v Gopal Chiinder Lahd,
289, 290 956.

— ■ Chiindra v Charu^ila, 770, 775

— Ghose V Pratd^thandra
Gho-e 922

— — Roy V Rajoni Mohan

Rov, 316.

Sara Umma v Kunhammad, 985
Saravana e Muttayi, 477, 485
Sardamal v Aranvayal, 455
Sardar Singh v Kiinj Behan, 779, 785,

918.

Sardarilal v Bharat National Bank, 430.

Sarjabai v Gangarao, 94

Sarju Prasad v Bir Bhaddar, 956

— — V Mangal Singh, 494, 807,

808.

— — V Ram Saran Lai, 430

Sarkies v Prosonomoyee, 102
Sarkum Abu v Rahaman Baksh, 942
Sarnam v Raja Bisheswar, 775, 776
.Sarna Moyee v. Secretary of State, 95, 692,

763.

Sartaj v Ramjas, 801
►Sartaj Kuan v Deoraj Kuan, 273, 351,
848, 849, 8.50.

Sni iini 11 VfiiklirHm 7R

TABLE OF CASES.

LXVII

Sarvothama Pai v, Govmda Pai, 384, 563.
Sasanka Bhushan v, Gopi Ballav, 906.
Sashi Bhushan v Rajendranath, 761.

Sasi Bhushan v Han Narain, 354, 547.
Sasi&man v, Shib Narayana, 752, 873, 908.
Sastry Velaider v Sembicutty, 174
Satchidanandam v Subbarazii, 374
Satgiir Prasad r Har Narain Das, 518,

787.

— — V Kishore Lai, 746.
Satliapalhiar v Sivanarayana, 348, 505,

722.

Sathappa Chetti v Subramaniain, 398.
Sathappan v. Vadivelu, 478.

Sathappayyar v Periaswami, 915
Sathi V Ramandi Pandaram, 303
.Sathiaiiama v Saravana, 924
Sail" Chandra r Haridas, 688, 761.

— L\ Haripada, 191

— — V Mohendro Lai, 298.

— — V Niladri Nath, 905

Satnam Singh v. Bhagwan, 939, 940, 943

Sat Karhi Bhattacbarya v Hazarilal, 919.
Sat Narain v Behan Lai, 440, 453, 456,

484.

— — v. Das, 426, 437, 438, 440, 454,

456, 526.

— — V Krishna Diitt, 867
Satrohan v, Bharath Prasad, 449.

— V Umadutt, 411
Salrucherla v Virabhadia, 529
Sattiraju v. Venkataswami, 205, 206, 210,

283, 297

Satyabhama v Kesavacliarya, 832
Satyacharan v Satpir Mahant, 411, 412.
Satyakiimar v. Satyakirpal, 555, 570, 571
Satyanarayana v Mallayya, 452

, — V. Narasayamma, 305
— Satyanarayanamiirthi, 427

— V Venkanna, 794
— V Venkatanara&imham, 864
Satya Narayan Singh v. Satya Nirinian,

845

Ranjan v. Annapurna Dasi, 896
Saiulagai Singh v Pardip Narayan, 812,

814, 817.

Saudimmey Dossee v Jogeshwar, 890, 891
Savitri V Raman, 388
Savitribai v. Bhabat, 726

— V. Lakshmibai, 824, 829, 834,

835

Savumian u. Narayanan Chetly, 415.

Say ad Hussein v. Collector of Kaira, 914.

— Sahu V, Hapija, 300
Sayamalal v, Sawdamini, 207.

Scott V. Sebright, 149, 283.

Scottish Equitable Insurance Co., In re,

950.

Secy of State for India v. Bank of India,

716.

Dugappa, 974.

Secy of Salte for India v, Haibatrav, 941.

i,. Santaraja

Chetty, 975..

Seemevulla v. Tungama, 652.

Seem v. Angamiithu, 476.

Seethai v Nachiyar, 626.

Seetharama v. Official Receiver, Tanjore,

454, 457.

Seetharamamma v. Suryanarayana, 213,

254.

Seetharamanna v Appiah, 310, 470.
Seetharamaniijdcharlii v Venkatasiibbam-

ma, 838.

Seethiah m Miithydlii, 275, 476, 496, 884.
Sellam v. Chinnammai, 655. 730.
Sellamiithii Servai, In re 454.

•Sellappa v Siippan Chetty, 364, 474, 788,
849, 851, 852.

Sengamaldthammal v Velayudha, 660, 741.
Sengoda v Miithii, 568
Seshachala Chetty v Chiiinaswamy, 319.
Seshamma v Padmanabha Rao, 206
Seshan Pattar v Veeiaraghavan 386.
Se<.happa v Devaraja, 984
Sgshayya v. Narasimha. 909.

— V Sanjivaiayudu, 452.

Seshureddi v Mallareddi, 904
Sespiiri V Dwarka Prasad, 178.

Seth Jaidial v Seth Sildram, 359, 371.
Scthu V Pai an I, 117.

Sethiirama t Ponnammal, 631.
Sethuramaswainiar r. Meruswamiar, 940,

941, 944.

Sevacawmy v Vaneyiirnmal, 878.
Sevachetumbra v. Parasucty, 204.

Sewdayal v. Official Trustee, 870.

Sha Ciiamanlal v Do^lii Ganesh, 631, 779,

885.

Shadagopn v Thirumalaisamy, 540.

Shadeo v Mahraji, 303
Shadi V Aniip Singh, 390
Shagiin Chand v. Data Ram, 562.
Shahamad v Salabat, 508.

Shahebzada v Hills. 506

Shah Mukhum v Baboo Sri Kishen, 18.

Shaik Abdul Karim v Thaktir Das, 315.

— Jan Mohammad v. Bhikoo Mahto,
, 428, 475, 480.

Shailendranath Hade Kaza Mane, 938.
Shakunthala ®ai v. Kaushalya, 84.

Shalig Ram v Charanjit Lai, 752, 873, 909.
Sham Behan Lai v Ram Kali, 741. 756.
— Charan^ Mall v Chowdhry Debia,

306.

— Dei V, Birbhadra Prasad, 631, 676,

781.

— Devi V Mohan Lai, 836.

— Koer V, Dah Koer, 746, 790, 811.

— Kuar V, Gaya, 257.

— — V Mahananda, 298.

— Lai V. Banna, 839, 841.

— — V Bindo, 303.

— — V, Hiru Singh. 559.

— — V, Ghasita, 315.

LXVIII

TABLE OF CASES.

Sham Lai Mitra v Amarendro, 957.

— Narain v. Court of Wards, 362

— — V Raghoobur, 355, 372
— Rathi V Jaichha, 799.

— — V. Kishan Prasad, 386.

— Rao V Shanta Ram, 411.

— Shivendar v Janki Koer, 748.

— Singh V Kishen Sahai, 610

— — V Santabai, 241, 252, 303

— Sunder v Achan Kunwar, 450, 468,

778, 785, 789, 790, 795, 796
Shama Soondurce v Jumoona, 816
Shamachurn v. Khettromani, 881.

Shamavahoo v Dwarka Das, ^^2, 286
Shambati Koer v Jago Bibi, 791.

Shambhoo Dutt r Jhotee, 668.

Shambu Prasad v. Mahadeo Prasad, 811
Shamnath Sahi v Lalji Chaube, 299
Shamnugger v Ram Narain, 390
Shamu v Bahu Aba, 649
Shangara v Knshnan, 958
.Shankar v Bechu Ram, 474, 481
— V Daoji Missir, 490

— V Official Receiver, 355

— V Raghoba, 84, 611, 669, 813

— V Ramrao, 237 *

— V Vishnu, 555

— Bai V Bai Shiv, 811, 815, 816,

817.

> — Baksh V Hardeo Baksh, 361, 530, '

531

— Bharati v Venkappa Naik, 938
Shanker v Kashmath, 610
Shanmuga Mudaliar v Kaveri, 952
Shanmugam i Nachu, 418, 426, 427, 129
Shanmugam Pillai v Krishnaveni, 292
Shanmugaroya v Manika, 882
Shanmugalhammal r Gomathi, 71, 763
Shanmukha Nadan v Arunachalain Chetty,

570

Shantaram v Waman, 523

Shanti Kumar Pal v Mukunda Lai, 799,

819

Shantilal Mewaram v Munshilal Kewal-
ram 402, 565

Sharat Chandra v. Dwarka Nath, 946
Shashi Bushan v Han Narain. 743

— — V Rajendra, 611, 709
Sheik Ghasit v Thakur PanchananJ 792,

" 793, 809, 810

— Ibrahim v Rama Aiyar, 386, 387
— Karoo V Rameshwar Rao, 444
— Mahomed v Amarchand, 924
— Muhumed v. Zubaida tian, 866
Shembu Nath v Gayan Chand, 69.

Sheobaran Singh v, Kulsumunnissa, 72
Sheobarat v. Bhagwati Prasad, 631, 662.

Sheo Buksh v Futtah, 567.

— Churn v Chukraree, 387
Sheodan Kurmi v Balkaran, 575.

Sheodas v Kunwul, 462.

Sheo Dyal v Juddonath, 379, 546, 573.

— Gobmd V. Sham Narain, 365

— Govind V Ram Adhin, 306, 659.

Sheokabai v. Ganpat, 241.

Sheokuarbai v. Jobraj, 88, 197, 251.
Sheolochun v. Saheb Singh, 772, 775.

Sheo Mangal v, Bodhi Kuar, 835
— Narain v Janki Prasad, 545

— — V Mata Prasad, 955
— Parsan v Ramnandan, 814

— Pershad ih Aya Ram, 941, 944.

— — V Jung Bahadur, 418

— — V Leela Singh, 388

— — V Raj Kumar, 431, 450.

— — V. Saheb Lai, 393, 450.

— Pertab v Allahabad Bank, 741, 766,

767.

Sheoraj v Nukrheda Lai, 471 478
Sheo Ram v Durga Baksh, 417, 427

— — V Luta Ram, 393, 401

— — V Sheo Rat an, 783
-- Ratan v Ram Perga^i, 944

— Shanker v Debi Sahai, 138, 741, 766,

767

— Shankar r Jaddo Kunwar, 386, 435
— Shanker v Ram Shewak, 470, 918,

• 930, 031

— Singh V Mt Dakho, 88, 198, 210,

248, 251, 516. 615

— — V Jeoni, 818

— Soondary v Pirthee, 707.

! Sher Mohamed Khan v Ram Rattan, 374.
— Singh 1 Basdeo Singh, 597, 668
Shesgiri V Girewa, 650
Shiam Lai v Ganeshi, 422
Shibd Prasad i’ Pravag Kumari, 67, 77,
351, 361, 364, 847, 848, 849, 851, 852,
853, 854, 857, 859, 861
Shibbi V Jodh Singh, 831
Shibessouree v Mothoora Nath, 917, 931.
Shib Dayee v Doorga Pershad, 463, 834
— Deo Misra v Ram Prasad, 242, 808.
— Kumari v Siibudhi, 952 *

Shib Narain Mookerjee r Vlhutnath, 71.
Shibo Koeree v Jugun, 294, 295.

Shib Pershad v Gunga Monee, 546
Shidappa v Pandurang, 519, 820.
Shidhojirav v Naikojirav, 69
Shidramappa v Neelawabai, 623, 681, 767.
Shimbu Nath v, Gayan Chand, 779
Shmnappaya v Rajamma, 189, 826
Shirmbai v Ralanbai, 900
Shivaji Rao v Vasant Rao, 497, 533.
Shivappa Riidrappa v Rudrava, 234, 360,

885, 908.

Shivbasappa v. Nilava, 234, 269

Shiv Charan Das v Han Ram, 3'^3

Shivdyal v Ram Jiwaya, 558

Shivji V Datu, 297

Shivlal V Bar Sankli, 831

Shivmurteppa v Virappa, 500, 570

Shivram v Krishnabai, 298

Shiv Ram v Sakharam, 435, 436

Shome Shankar v Rajesar, 538, 651, 690.

Shookmoy v Monohan, 383, 893, 899, 904.

Shri Dev v Dwaraka Das, 293.

TABLE OF CASES.

LXIX

Shridhar v Hiralal, 148.

Shri Ganesh Dharnidhar v. Keshaviav, 924.
Shn Sitaram v. Harihar, 231, 283.

Shripad v. Basappa, 454, 455, 457.

— V. Vithal, 246.

Shiidanund v. Bonomalee, 466.

>Jhiimshere v Dilraj, 280.

Shyama Bhai v, Purushottamadoss, 834.

— Charan v. Samp Charan, 921.
Shyamcharan v Sricharan, 264.

Shyani Lai v. Badri Prasad, 479.

— Narain v Suraj Narain, 432.

— Sunder v, Jdgarnath, 501
Sibbasoondery v. Biissomiilly, 545, 547.
Sibta V, Badri, 662.

Siddd V. Subbamma, 296.

Siddappa v, Narasappa, 519.

V Ningangavda, 273.

Sjdd(‘siiry v. Janardan, 829, 830
Siddheswaranath v. Deo Kali, 454
Sidlmgappa v, Sidava, 826, 835.

Sifton V Sifton, 902

Sikher Chund v Dijpiitty, 308, 485

Sikki V, Venkatasamy, 823.

Sinibbnnath v Golapsingh, 425, 429, 430,

431.

Sirnmani v Muttammal, 50, 6.59, 705
Sinaya Pillai v Muniswami, 308, 312
Sinclair v Brougham, 816
Sind Kaur v Indar Sing, 729
Sindigi Lmgappa v Sindigi Sidda Bas-

appa, 215

^Mnga Reddi v Subba Reddi, 422
Singdinma v, Venkatacharlii, 253
Singam Setti v Draupadi, 516, 789
Singh Sanatan v Singh Rajput, 926.
Sinnammal v Srttiya Goundan, 42^.
Smthayee v ThanakapinJayen, 828.

>iraj Fatima v Mahmud Ali, 314
Sirikanl Lai v ^idhcswari, 381, 392, 101,
448, 452, 4,53

Sin Thakur v Atkins, 916, 92.5, 926. j

Sisir Kiimiid v. Jogneswar, 741. !

.Sitabai V Bapu, 214, 216 j

— V Govmdiao, 228, 230. I

— V Parvatibai, 246 I

— V Ramachandra, 826. [

Sital V Madho, 460. '

- - Prasad v Kaifiit Sheik, 911.

— Rant V Adalat Rant, 818.

Sitanath v Haimabatty, 826.

.Sitanna v. Viranna. See Vytla Silanna v
Manvada Viranna.
Sita Prasad v Thakur Das, 940.

Sitaram v, Aheeree, 188.

— V. Beni Prasad. 454, 4.56.

— V. Ganpat, 648, 822

— v. H R E Board, 944.

— V Khandu, 786.

Sitarama v Official Receiver, 455
Sitaramayya v. Venkataramanna, 411.
Sitarambhat v. Sitaram, 943.

Sitaramiyar v Alagiri, 319.

Sitaram Pandit v. Harihar Pandit, 415,

495.

Sithamahalakshmamma r. Kotayya, 467,

483.

Sitla Bakhsh v Mt. Ram Raoji, 477.

Sita Saran v. Jagat, 813.

Sivagiri r. Tiriivengada, 418.
Sivanagalmgam r Ambalavana, 133, 141.
Sivanananda v, Muttu Ramalinga, 69.
Sivanandammal v. Narasinga, 836.
Sivapraka«a v. Manickam, 934.

Sivarama v Bagavan. 133.

Sivaramami^thi v Venkayya, 500.
Sivaraman Chetty v, Muthaiya Chetti, 919.
Sivarath v. Ghurki, 374.

.^ivasangu e Minal, 94, 651, 659.
Sivasankaia v Soobramania, 891, 902.

— r. Vedagiri, 946.
Sivasiibramania r Krishnammal, 851, 858.
Sivasuryanarayana v. Audinarayana, 226.
Sivaswami v Thiriimiidi, 936.

Skinner v Naiinihal, 910.

— V Orde, 102, 303.

Smith r Massey, 921.

So^an Singh r. Mt. Narain, 71.

Sobhaddilal v Gobind Singh, 689.
Sobhanadramma v Narasimhaswami, 833,

834, 836.

Sohan Lai v Atal Nath, 306.

— - - r Bhagwati, 781.

— — V Kartar Singh, 88, 432.

— t’ Peary Lai, 467.

— V Zorawar Singh, 475, 481, 485.
— Singh V Kalla Singh, 93, 178.
Soirii Padmanabh v Narayanrao, 391.
Sojediir Raja Chowdhury v. Gour Mohan,

947.

Sokkanadha v Sokkanadha, 398.
Solaimalai Kune v Sukkammal, 218, 221,

228.

Solukna r Ramdolal. 214.

Somasekhara v Siibadramaji, 283.

— Royal V. Sugathur Maha-
deva, 89, 98, 250.
Somasundara Mudaliar v Ganga Bissen,

460, 906.

Somasundaram v Unnamalai, 837, 839,
• 840, 841, 342.

— , ^ Kanno Chetti, 393.

— f’. V'^aithilinga, 689, 733,

809.

Someishwari v Maheshwari, 852, 854.
.Someshwar v, Someshwar, 820.

Sonaluxmi v. Vishnu, 183.

Sonatiin v Riittan, 98

— By sack v. Juggiitsoondree, 557,
883, 893, 899, 914, 916, 924.
Sonet V, Mirza, 688.

Soni Ram v, Kanhaiya Lai, 783.

Soobah Doorgah v. Raja Neelaniind, 300.
Soobramaneya r. Aroomooga, 939.
Soobramiah Chetty v. Nataraj‘a 50, 668,

671 .

Soonder Narain v, Bennud Ram, 308.

/ LXX

TABLE OF CASES.

Soora Lakshmia Chetty v, Kothandarama i

Chetty, 952. j

Sooralha Singa t Kanaka Singa, 248.
S>)orendro v, Nundiin. 471, 472, 485
Soorendrandth Roy v Mt IJeeramonce, 76, '

97, 98, 617

Soorjd Koer v Natha Bakir-h, 837, 838. j
8oorjeemone> Do<^spe v Deenobundo, 377,
379, 383, 385, 528, 771, 772, 879, 895, ,
896 906

Soolrogiin V Sabitra, 287

Sorolah Dost-ee r Bhoobiin Mobiin, 544,

547, 743 t

Soshi V Ganesh, 388, 389. '

V Tarokessnr, 893

Sondaniiney v Joge«.li. 546, 868 '

Soundararajan v INatarajan, 888, 890, 891 i
t Ariinaclialam 498, 561, ,

647, 618 I

Sourendra Mohan ‘^iiiha v Han Pra-idd, '
47, 53, 62, 418 ■

Souri V Pdchia, 500

South Indian Export (o v Siil)bur 100. .

793

t VisvanaiMid, I

100 I

Sowbagiaminal v Mamcka, 840 |

Sowdamiiipp v Adminislrator-Geiipidl. j
Bengal, 745, 772, 773

Sowntharapandian v Peria\eeru Thevin i
202, 208 257, 258 j
Sree Chand v Nim Chand, 388 ,

Sreedevi Nethiar t Peruvunni. 970 971

986

Sreeman Chiindei t Gopaul, 953
Sreenaram v Bliya Jhd, 294, 295. 877
r (roorooprasad, 379
— Muter i Sreeniutlv Kidien,
252, 286, 102

Sreenath v Surho, 762

— Roy 7 Ruttuninulld 277
Sreepathi Chatterjee v Krishna Chandra,

944

Sreeram v Puddomookee. 835
Sreerdinuln v. Kristnamma, 277
Sree Siee Ishwar Narayan v Soler, 931
Sri Chandra r Mt Shvam Kumari, 436
— Datla Venkata v Gatham Verkatra*

X yndu, 510
Sridhara v Mahidhara, 406^

Sridhar Chattopadhyaya v Kalipada, 772
Sridhara Rao v Srinivasa, 467 '

Sn Girdhar]! v Roman Lal,i 941 I

Sn Krishen v Sham Sunder, 170
Sri Mahant Prayag Das v. Govindacharlu,

929, 943, 044

Srimati Krishna v Bhaiya Rajendra, 776
Srimath Daivasikhamoni v Noor Moham-
mad, 930

Srimohan v. Brij Behary, 476, 481, 780, |

787.

— V. MacGregor, 554
Sri Narain v. Raghubans, 432
Srinath v. Boobut Chunder, 825. I

Srinath v Radha Kant, 293, 294.

Sriniva'^a r Ammani, 835

— V Kuppanayyangar, 263

V Lak'^hmi, 836

— 7 Rangaswami, 226, 631

— 7 Se'^ha Aiyar, 142, 145

— 7 Yelaya, 435

— Ivengar i Alamelu, 476

— — V Kuppubwami, )13„

515.

— — t. Thiiuvengada, 143,.

190, 526.

Siinivd'^aehariai v Evalappa, 928, 946
Srini\asamiiithi v Venkatavarada, 884
Srinna^'d Sargerar v Bahvant, 291
Sn Pal Rdi 7’ Surja Vali, 743
Siipat i Tagore, 425, 431
Sriiam v Harnharan, 545
Siiramiilu v Ramayya, 246, 247
Sn Rdjd Parthasarathv r Subba Rao, 120
— Rail V'tnkata i Chellayammi,
212, 777.

— — Surva Rao v Sn Raja Suiyanaia-

' yana, 800

— — 5 enkata Narasimbti v Sri Raja

Rangayya, 206, 263, 264, 283, 846.

— Ram Jankiji v Jagadamba, 744, 776

— Ranga Talat liana v Sriniva'^a, 384,.

385, 540, 563,

Snsh ( hiindra INandi v Sudhu Krishna^,

449.

Si I Si I Gopal Jew Thakur t’ Radha Binodf,

916, 926

— - Thdkiirjj V Nanda Ahir, 482 ^

— — V Siikdeo Singh, 926

— Venkdtaramanaswami Temple v Rama-

swami, 929.

Stdlkaitt i Gopal 390

Stnngei ^ Estate, In /e, Shaw v lone'-

Fifrd, 898.

Stiiniva‘-d V Sriniva‘^a, 945
Suba Bibi v Haralal, 954
— Singb I’ Sarfaraz, 610
Sul)ba V Venkdtrami, 493
— Aiyar v Ganesa Ayyar 531, 532
— Goundan v Krishnamachari, 488,
498, 502, 516, 517,

Subbaiya Pandaram v Md Mustafa, 935
Subbalakshmi v Narayana Aiyar, 801
Subbaluvammal v Ammakutti, 241
Subbamma v Subramanyam, 802
— V Veerayya, 575
— V Venkat Krishna, 775
Subbammal r Aviidaiyammal, 808
Subba Naicker, In re, 483.

— Narayana v Ramaswami, 958.
Subbanna v Subbanna, 451, 837
Subbaraghavarao v Adinarayanarao, 804
Subbaraju v Narayanaraju, 73, 142, 143,

283,

Subbarami v Ramamma, 465, 494, 883.
Subbarao v Ademma, 467.

Subba Rao v, Subba Rao, 566, 570.

— Rail V Rama Rau, 571.

TABLE OF CASES.

LXXl

Subba Row v, Ananthanarayana, 498.

— -r- V. Mahalakshmamma, 295,

296, 555.

— — V. Official Receiver, Guntur,

455.

Subbarathnam v Gunavanthalal, 314, 395,

398, W.

— Mudali V, Balakrishna-
swami, 763.

Subbarayd v. Kailasa, 631.

— V Ramaswami, 79, 80, 87, 95,

692, 728, 763

— V Sadasiiiv, 565.

— - V Suhbaraya, 957.

Subbarayaloo v Ranganatha, 932.
Siihharaydlu v Kamalavalli Thayarammal,

829, 843

Subbdidydfid V Subbakka, 824, 828.
Subbaiayar t Siibbammai, 213, 241, 254,

286, 905

Subbaiayudu v Koldyya, 936.

Siibbarayulu v Ratnam Aiyar, 429.
Subbara/ii v. Venkataratnam, 574.

Subbareddi v Alagafnmal, 572.

— V Cbengalamma, 770, 815

— V Doraisami, 880.

Stibbaroya Pillai v Thangavelu, 401.
Siibbraya r Nagappa, 429
Subbayyd i Anantramayya, 190, 191, 527
V. Bhawane, 827, 831.

— V Mariuldppd, 862.

— V Rangayyd, 103, 551.

— V Surayya, 460, 886
Siibbi V Ramakrishna Bbattd, 811
Subramania v. Arunachalam, 543, 741, 742,
745, 749, 755, 756, 774
V. Krishna, 980, 988

- V Muthainmal, 835

— V Nagarathna, 933, 947.

- - • V Natesa, 942.

■ — V R!^machandra Rao, 571

Subramanya v Padmanabha, 500, 574
Siibrabniaiiya v Sabapathi, 438, 439
Subramanya r Sadasiva, 467
— V Savithii, 555.

Subranidiiia v Vaithilinga, 938
Siibramanyam v Kizhakkara Uthanathil,

981.

Subramania v. Valu, 822.

— ■ V Velayudam, 276
— Aiyar V. Gopal, 421.

— V Ralhnavelu, 38, 86,
134, 537, 538, 617,
648, 651. 691, 763,
764.

- — V. Sithalakshmi, 867

— Ayya v. Arumugam Chetty,

311.

— Chetty V. Chidambara, 481.

Subramanian Chettiar v. Raja Rajeshwara

Dorai, 313.

Subramanyam v, Venkamma, 219, 221, 222.
— Chetty V. Ramakrishnammal,

397, 400, 788, 793.

Subramanyam Tinimurapu v, Narina, 972.
Subramanyan r. Parameswaran, 975.
Subramanian v, Somasundaram, 238, 242,
270, 282, 289.

Subramania Nadan v, Ramaswami, 481.
Subramanya Pandian v. Sivasubramania,
339, 854, 856, 857.
Subrao r. Mahadevi, 446.

— V Radha, 246
Subiidra v Goluknath, 211.

Suchit Chaudhiiri v llarnandan, 306, 310.
Sudaniind v Bonomallee, 463.

— V Soorjuo Monee, 374, 460, 513.
Sudarsana ftao v .Seetharamamma, 275,

289.

I Siidarsanam Maistri v Narasiinhulu, 340,
341, 348, 352, 359, 360, 361, 565, 567,

! 568.

Suddurlonnessd v Majada. 100
Sudhamoni Das v Surat Lai Das. 908.
Sudbamoyee v Bhujendra Nath. 864.
Sudhindra v Biidan, 938
Siidbircbandra v IJttara Sundan, 911.
Sudi‘»ht V Mt Sheobara, 791
Sii^ndabai v Kesarbai, 375.

Sujan Devi v. Jagiri Mai, 614
Sukdti V Kedarnalh, 881
Siikbadakanta v Jogineekanta, 469
Siikhbir V, Mangeisar, 96, 242
Sukhdeo V, Basdeo, 385, 527
— V. Madhiisiidan, 416

— V Ramchunder, 303, 305

j Sukiimari Bewa v Ananta, 204
Siilaiman v Biyaththumma, 970.

Suleman v Venkatraju, 519.

— Kadar v Nawah Pershad, 953.
Saheb v Pericbelva, 820
Sumer Singh v. Leladhar, 408, 415
Sumeshar Lind v Baldeo Sabti, 447.
Siimnin v Khedun, 535.

— Thakur v. Chander Mun, 544
Sundar v Khuman Singh, 67.

— V Parbati, 522, 6.53
Siindara v Tegaraja, 491
Simdarabai v Jayavant, 18
Sundaram v Meenakshi Arhi, 648
.Siindarambal r. Yogavana Guriikkal. 928.
SundariAnma v Venkatasubba Ayyar, 202,

, * 208, 257, 2.58.

Sundarammal v Rangaswami, 624, 678,

681.

Sundaram Pillai v. Ramaswami Pillai,
• 753.

Sundararaja v Jagannada, 435

— V Pattanathiisami, 306, 309.
Sundara Siva v. Viyanna, 660, 802.

Sundar Babu v. Manohur, 544.

Sundaresan v, Visvanadha, 938.

Sundan v. Pitambri, 705, 728.

— V. Subramanyam, 190.

— V Venkatarama, 835.

— Dossee v, Nemye Charan, 95, 692,

763.

Sundar ji a.^Dahibai, 88, 834.

LXMI

TABLE OF CASES.

Sundar Lai v Baldeo Singh, 88.

— I Fdkirchand, 956.

— Mdni V Gokulanand, 626, 707
Siindarsingh v Naraindas, 924
Siindar Singh r Ramnath, 840.

Sunder Lai v Raghunandan, 416, 446 1

— Mull V Satva Kinkar, 487,488,789 |

Sundrabdi v Ilanmant, 69. 78, 248

— V Manohar, 955 !

— V Shivanarain, 143, 190, 476, I

821 I

Sundrammal r Ranga-wami, 678, 681 j

Sundararamayya v Sitainma,^ 483 |

Suneel Kumar i Shi‘.hir Kumar, 912 '

Siintosh Ram i Gera Pattuck, 188 j

Supdu Daulat Singh v Sakharam Ramji, I

401 I

Superiinddhwaja Prd«^ad v (ranirad

dhwaja, 68

Suppabhattar v Suppu Sokkayva, 935
.Suppammal v Collttlor of Tanjort, 924,

926

Suraj V Attar, 656

— Bak<-h V ktdarnath, 487

— - Balli V Tilakdan, 746

-- Bhan Singh i Sail Chain Sukh, 479,

819

-- Bunsi V Mahipat, 816 I

— — V Sheo Prasad, 380, 416 419, |

421, 426, 429, 430, 432-136, I
440, 444, 445, 416 447, 465,
466, 491 192, 498 500, 502,
531

— Juti kuer V Attar Kumari 89 ^

— Kumar v Jagannath, 374 j

Mam V Rabinath Ojah 752, 908
— Narain r Iqbal Narain, 530. 557, I

560, 561 I
r Ratan Lai. 362, 378 '

— Prasad v Mt Gulab Dei, 752, 900,

904

— V Makhan Lai, 509
Suramchand v Inder, 178
Surampalli v Surampalli, 826, 827
Suraneni v Suraneni, 559, 615
Siiranna i Subbarayudu, 500, 574
Surayya v Annapurnamma, 211 ,

— V Lakshin inarasamma 50, 667
— V Subbamma, 50ff, 724, 817
Surbomungola Dabee v Mohendranath,

917, 921

Surendra v Hemangmi, 2^3

— V Durgasoondery, 202, 214, 215.

286. 927

— Krishna r Rani Dassi, 882
— Nandan v Sailajakant, 215, 216,

268

— Narain i Hanmohan, 391
Surendranath v Jnanendra Nath, 882
— V Sambhunath, 387, 403
Sureshchandra v Bai Ishwan, 355, 372
— ^ Jyotirmoyee, 896

Suresh Chunder v, Jugat Chuyder, 315

Sureshwar v Maheshrani, 653, 778, 799,
805, 806, 885.

Sunya Rau v Raja of Pittapur, 212, 871,

893, 894.

Surjyamoni r Kalikanta, 187, 188
Surjokant Nundi v. Mohesh C bunder, 258
Surti V Narain Das, 726
Surya Mull v Dwaraka, 957
Siiryanarayana r Butchiah, 957

V Ramadoss 225, 226, 267

V Venkataramana, 197, 214,

215, 225, 231
— V Viswanatham, 440, 451.
Suryanarayanarao Naidu v Balasubra-
mania, 841, 842.
Siitputtee V Indraniind, 293, 294
Sushcela Sundari v Bishiiu Pada, 707
Susil i) Aspari, 882
Sutton, In re. Stone v A -G , 921.
Suyamprakasam v Murugesa Pillai, 309
Svami Ayvar v Chokalinga, 540
Swaminatha r Srinivasa, 938
Syed Kasam v Jorawar Singh, 444, 493,
• 565, 573.

- MahoiTU‘(l V Shashi Mouli, 952

— Sal)ii Husein v Far/and Ilasan, 311.
Symfs i Hughes, 957

T

Tadiboyina v Kattamma, 744.

Tagore i Tagore {Tagore r«se), 212, 465,

597, 833 868, 869, 870, 871, 873, 874,

875 877, 879, 884. 886, 887, 889, 891,

892, 893, 894, 895, 903, 906, 907, 916,

919, 941

Tahaldai r C^aya Pershad, 626, 707.

Taleb All V Abdul Razack, 763
Talemand v Rukhmina, 841.

Taliwar v l^ihlwand, 567 •

Talluri Venkata Seshay^a v Thadikonda
Kotiswara, 315.

Tamiz Bano v Nand Kishore, 447
Tamireddi v Gangireddi, 385, 295, 527,

529.

Tandavaraya v Valli, 485
4'ara v Krishna, 627, 659
— V Sarup, 841

— Chand v Reeb Ram, 69, 75, 357, 381,

437, 460.

— - Ghose 7’ Pudum Lochurn,

577.

Tararhurn v Snreshchiinder, 233
Tarakeswar v Soshi, 886, 893, 894.

Tara Kumari v Chatturbnj, 858
— Mohun Bhuttacharjee v Kripa Moyee,

262.

Taramonee v Shibnath, 953.

— Munee v Deve Narayan, 209, 240,

276.

Taraprosad v Modhu Sudan, 789.
Tarasoonduree v Oojul, 954.

Tarinicharan v Debendra Bal De, 501.

— V Saroda Sundari, 287.

TABLE OF CASES.

LXXin

Tarnee Churn v, Mt. Dassee, 462.

Tarubala Dasi v, Sourendra Nath Mitter,

313.

Tarun Kumar Chose, In the goods of, 955.
Tatayya v. Ramakrishnamma, 779, 780.
Tayabali v. Lilabai, 840
Tayammal v, Seshachalla, 206.

Taylor v. Bowers, 957.

Taylor’s Settlement Trusts, In re, 457.
Tayumana v. Perumal, 460.

Teeluk v. Ram jus, 387.

Teeluk v Shama Churn, 733.

Teencowree Nath v. Dinonath, 756.

Tegh Tndar Singh v. Harnam Singh, 545
Tehl Knar v. Amarnath, 775.

Teja Singh v Kalyan Das Chitran, 864
Tejpdl V. Canga, 308, 312, 514.

Tej Protab v Champakavallee, 559
Tekait Monmohini v Basanta, 188, 189,

826.

Tellis V Saldanhd, 103
Temmakkal v Subbammal, 308
Teramath v Ldkshmi, 941.

Thdckersey Dewraj v. Hiirbhiim Nursey,
917, 927, 932, 946
Thaj* Mahomed Saib v. Balaji Singh, 417.
Thakar Das v Mt Putli, 306, 404
— Singh V Ary a Pratmidhi, 882
Mt llttam, 485, 814

— — V Sant Singh, 570, 571
Thakor Dayhee v Rai Baluk Ram, 53, 133,

740, 766

Thakoor Hardeo Bux v. Jowahir Singh,

362, 371

— Kapilnalh v The Government,

850

— Oornrao v Thakooranee, 253
Thakro v Canga Pershad, 951.

Thdkiir Das v Keshiib, 958

— Isliri Sin^h V Baldeo, 855
— Jdi Indra r Khairati Lai, 479
— Jeebnalh v The Court of Wards,
126, 604, 661

— Nitepal Singh v Jai Singh, 68, 77,

844.

— Prasad v Culab Kunwar, 508.

— — V Mt. Dipa Kuar, 781,

782, 794, 796, 799, 804,
805, 806, 814.

— Rdghunathji v .Shah Lai Chand,

927.

Raghunandan v, Thakur Dripa,

506.

— Ramkrishna v, Ratanchand, 485.
— Shere v, Thakurain, 371

— Singh V, Mt. Uttam, 791.

Thakurain Jaipal r. Bhaiya Indar, 814,

817.

— V, Mohun, 621.

Thakuram Ramanund v, Raghunath Koer,

362.

Thammanna v, Akrapa, 401.

Thandavaraya v, Shanmugam, 380, 941,

Thangam Pillai v. Suppa Pillai, 537, 538,

540, 649.

Thangdthammal v, Arunachala, 411
Thangathanni v. Ramii Mudali, 208, 252.
Thangavelu v. Doraisami, 565.

— V Purushottama Reddi, 496,

497.

Thankammal v Kunhamma, 452.

Thapita v Thapita, 184.

Thara Naikin v Nana, 73.

Thaylaiachi v Kannammal, 898.
Thayammal v. Annamalai, 617.

Thayammal v Kuppunna Goundan, 299.

V •Venkatarama, 233.

Thayu v Shangiini, 985, 986.

Thayyil Mammad v Purayil Mammad, 974.
Th&vasimuthu v Thavasimuthii Nadar,

440, 562.

Tha/ath Soopi v Abdulla, 398
Thenju v Chimmu, 979.

Thiagaraja v Vedathanni, 926
Thimmakke v. Akku, 983.

Thimmanayanim v Venkatappa, 843
Thimmanna v Rama Bhatta, 486, 791, 793,

794.

Thiruiaictidisami v Venkatarama, 787.
Thinmavukkarasu Chetty v. Muthukrishna,

428.

Thiruthipalli Raman v, Variangattil, 968,

970.

Thiriivengada v (^nanasambanda, 771
Thukram v (Government, 362, 371, 953.
Thiikrubai v Attavar, 82, 690
Thulasi Animal v Official Receiver, Coim-
batore, 951, 952.
Thungd V Nanikiitty, 974.

Thurstan v Nottingham Building Society,

312.

Tikamchand v Sudarsan, 452

Tika Ram v Dy (Gommr of Bara-Banki,

796.

Tikari V Tekan, 616
Timma v Daramma. 973.

Timmappa v Narsinha, 430.

Tin Cown v Krishna Bhabini, 831
Tinumoni v Niborum, 706
Tipperah case, -^ee Neelknsto v Beer-
• chandra.

Tirath Ram v Mt. »Kahan Devi, 614, 631,
• 679.

Tirbeni v. Muhammad, 553, 732.

Tirumal Rao v, Rangadani, 342, 343
Tirumalachan v lAndalammal, 631, 678.
Tirumalaimuthu v Subrahmanya, 439.
Tirumalayappa v. Swami Nayakkar, 954.

— V Veerabadra, 413
Tirumamagal v, Ramaswami, 726.
Tirupathiraju v. Venkayya, 808, 809.
Tiruvambala v. Manickavachaga, 939, 940.
Tiruvengalam v Biitchayya, 218, 260.
Topham Re, Public Tnistee v, Topham,

914.

Torit V Taraprosonno, 547.

Toshanpal Syigh v Dt. Judge of Agra, 414.

LXXIV

TABLE OF CASES.

Totaram v Hargohind, 494
Toiarani i\ Ramcharan, 188, 301.

Totawa V Basawa, 659, 756
Trailokya Nath i Radha Sundari, 707
Treekiimjee t \lt Laro Laroo, 187
Tnbeni v Jainarain, 404

— Prasad v. Bishamhar Nath, 438
— — t Ramasray Prasad, 386

Tnhhuvandas v Gangadas, 870
Tnbovandas v Yorke Smith. 362
Triciimdas Miilji v Khimji V'^allabh Da^s,

918.

Tnkam Pur^li ittani v Natha Daji, 625,

681

Trikumdas Damodhar v Haridas 921
Tnmbak v Lakshman, 941

— V Narayan, 434, 435 '

7 Naravan (11 Bom PC, 68)
488, 570

i Pandurang, 500, 530
— V Sakharam, 520
Tnmliakpuri v Gangabai, 939
Tripura Charan v Harimati Das^^i, 651,

763

Tripiiramba v Venkataratnam, 236 *
Trivikrama v Sankaranaravana, 981
Tukaram v Dmkar, 648

— V Gangaram 411.

— 7’ Gunaji, 748

— V Naiayaii Ramarliandra, 37,

753

— r Ramachandra, 261, 262

— 7- Yesii 794, 801

Tula Ram v Tiilshi Ram, 471 '

— — Sah V Shvam Lai Sah, 96 !

Tiiljdiam V Mathiiradas, 767. '

V Nathuram, 742 |

Tullapragadah v Crovedy, 878
Tiilsee Das v Luckymoney, 694. i

Tulsha V Gopal, 825 |

Tiilshi V Bishnath Rai, 387, 402 |

Tiilshi Prasad v Dip Prakash, 411 ^

— — V Jagmohan Lai, 783 i

— Ram V Bohan Lai, 68, 209
— Bai V Haji Baksh, 497, 566 1

Tulsidas V Vagheld Raisinghji, 310, 470. i

475 I

Tulsiram v Babii, 510, 511 ,

— V Bishinath^ 429, 432 ,

Tiilsi Ram v Narain Das 374 |

Tundun v Pokh Narain, 954. ■

Tyrrel v Painton, 881, 882.

j I

u

ITchmatan v Rajendra, 653.

Udai Chander v Ashutosh, 783.

Udai Dat v Ambika Prasad, 785

— Raj V Bhagwan Baksh, 880 ,

Udaram v Ranu, 417, 444, 492, 495* 499,

500 505, 574, 883
Udaychand v. Thansingh, 391
U dayarpalayam case, see Kachi Kalyani

V, Kachi Yiiva, '

Lddoy V Jadublal, 462, 850

Dde Singh i Mt. Daiilat Kuor, 189, 826,.

827.

Lgaichand v Madapa Somana, 521.
likkandam i I 'nikiimaran, 978
llji 7- Hathi, 72

lijagalum Poriimal v Snbbalakshrni 851,
852, 857, 858, 860.
I Ifat Rdi V Gann Shankar, 306

— — - V Tejnarain, 432

I ina Pershad v Crandharp, 951

— Shankar i Nageswaii, 160, 161, 193,

631, 636, 675, 676.

- Shanker v Mahabir, 467
Shd'^hi 7 A krill Chandra, 954
Sundari v Dwarkanath, 523

Lmaliai v Bhavu, 726

— 7’ Nani, 237

I'madovi v Goko ilaniind Soe Wooma
Deyi I Gokoolanund
Lmaid Bahadur i Ldoichand, 157, 631,

632, 639

Lmakanta v Biswambliar. 880

Llmakanl BalkiiKhna v Martand Keshav,

404

llinamaheswara v Singaperiimal, 436
Lman Parshad r C^andhaip Smgh, 68
— Shankar v Mt Ai'^ha, 716
I'ma Sundari v Dwarkanath, 523
7 Sonrobinet*. 211
-- Siinker i Kali Komiil 257, 697
Lmed r (roman. 436

- V Nagindas, 144, 145
I'mrao Kiinwar 7' Badii, 817

— Singh 7’ Baldoo Smgh 555 903
Linrithnath (Tiowdhri i (rouroonalh, 70,
78 355, 359, 377
University of Bombay r Municipal Com-
misMonor, Bombay^ 914 919
Unnapoorna v Ganga, ,443
Unni V Kunchi Amnia, 978. 986
Iinnoda 7’ Erskine, 387
llpondra r Gopinath, 376, 568, 569

— 7’ Thanda, 617

Upendralal r Hemchundra, 900
L^pondranath v Baikuntha Nath, 927

— V Bindediri, 805

— V Gurupada, 805

— V Kiran Chanilra, 787 789

— r Kusum Kiimari, 938

Upoma Kochain v, Bholaiam, 178
Upooroop Tewarv v Lalla Bandhajeo 426.^
Uthe Amma v Mam Amma, 898 969
Lhma Kuer v Bhagwanta Kiiar, 303

V

Vadali V, Kotipalli, 653
— V Manda, 485

Vadamalai v Subramania Chettiar, 374
Vadilal V Shah Khushal, 391, 398
Vadlamudi Sastrulu v. Venkataseshayya,.

933, 947.

TABLE OF CASES.

LXXV

Vaidyanatha v, Ayyaswami, 527, 572.

— V. Savithri, 277, 786, 797.

— I V Swaminatha, 918, 920, 939,
945, 947.

— V. Yogambal, 846.

Vaikuntam r. Avudiappa, 403, 448, 527,

529.

— V Kallapiran, 190, 191, 476,
482, 525, 821, 960
Vairavan Chettiar v Srinivasachanar, 350,
351, 644, 911.

Vaishno Ditti v. Rameshri, 68, 71
Vaitheswara Iyer v Srinivasa, 958.
Vaithianathan v Gangaraju, 144.
Vaithilinga v. Aiyadorai, 79, 551.

— V. Sumasundara, 917.

V Vijiathammal, 169, 250
Vaithilmgam v Miiriigaian, 284.

— V. Natesam, 241, 242, 290
Vdlia Konekkal v. Lakshmi, 985
Vaithilinga Miidaliar v. Srirangath Anni,
290, 807, 810, 81 J
\aliakaima1 t Velluthadalha, 983
Vallabhdas r Cordhandas, 893, 907
Vallabhram v Bai Hariganga, 726, 729
Vallinayakam v Pachche. 878, 883
Vallubdas v Sakerbai, 618.

Vdlu V Ganga, 831
Vabibai v Govind, 253
Vaman v Venkaji, 273, 284.

Vangala v Vangala, 777,

Vanjapun v Pachamiithu, 500, 530.
Vanniakone v Vannichi, 72, 89, 93
Varada Narayana v \ongii Ammal, 211,

905

Varadapillai v Jcevaratnammal, 555, 746
Varakalamma v Anakala, 288.

Varamma v Gopala, 291, 818
Varankot Narayanan v \arankot Naia-
yanan, 978, 980

Varjiran t (iheUi, 795.

Vasant Rao v Behan Lai 809. 810
Vasonji r. Chandahai, 765, 766, 768, 791.
Vasiidev v Narayan, 865.

— V Venkatesh, 492
Vasudeva v Narayana, 980
Vasudevan v Govindan, 986
Vasiidevan v Secretary of State, 91, 92,
126, 133, 209, 223, 250, 280,
293, 295, 407, 769

— V Sankaran, 970, 977, 978, 979,

980.

Vasudevanant v Ramakiishna, 207.
Vasiideva Rao r. Sakharam Rao, 360.
Vasudev Vishnu v. Ramachandra Vinayak,

234, 273.

Vatsalahai v. Vasudev, 745.

Vattavatta v. Kenath, 978, 980, 981.
Vayidinatha v. Appu, 51, 58, 248.
Vedachala v, Subramania, 49, 50, 51, 630,
636, 638, 673, 674, 676, 677, 680.
Vedammal v, Vedanayaga, 80, 627, 729.
Vedanayaga v. Vedammal, 729.

Vedathanni v. Commissioner of I. T.,
Madras, 339, 361, 720.
Vedavalli v, Mangamma, 253.

Veerabadra v Marudaga Nachiar, 771, 776,
792, 808, 809, 810.
Veera Basavaraju v, Balasurya, 219, 220,
223, 230, 231.

Veeramarhaneni Rama^'Wamy v. Soma Pit-

chayya, 947.

Veerammal v. Kamu, 565
I Veeranna v. Sarasiratnam, 74, 292
i — V Sayamma, 278, 279, 513.

Veeraperumal v. Narain Pillai, 215, 252.
Veeraraghava v. Kotareddi, 745.
Veeraroyan Valia Ram, 988.

' Veerasami v. Polavaruppu Nayudamma,

' , 808.

! Vpera Sokkaraju v. Papiah, 443, 447.

! Veerasoorappa v Eriappa, 430.

' Veeraswami v. Ratnamma, 304.
j Veerayya v Gangamma, 818.

1 — V. Venkata, 438, 789.

Veggamma v. Kalyanamma, 831.

' Velaga Mangamma v Bandlamudi, 291.

, Velicbetti Satyanarayana v, Sajja Venk-
% anna, 804.

I Vellanki Venkata v Venkatarama, 214,

I 220, 221, 229, 231, 233, 266, 267.

I Vellaswamy v, Sivaraman, 882
Vellayammal v. Palaniandi, 804
, Vellayappa v. Krishna, 449, 528.

I — V Natarajan, 536, 537, 538,
646, 648, 649, 723, 821, 822, 862.
Veliithakal v Veliithakal, 540, 970
Vembu v Srinivasa, 475, 478, 480
Vengamma r Chelamayya, 359, 746, 812
Venkap v Vishnu, 789
Venkamma v Savitramma, 305.

— V Suhramaniam. 220, 222, 226
Venkammamidi Balaknshnayya v Tri-
ambakam, 261.

Venkanna v Narasimham, 815, 816, 818
Venkappa v Jeevaji, 238.

Venkareddi v Hanmant, 739, 747
Venkata v Chellayammi, 893.

— - V Narayya, 531.

— V Rajagopala, 531.

V Rama, 372.

— . r Subhadra, 51, 169, 213, 241,

. 247, 254.

— V. Virabadrayya, 778

Venkatachalam v Sethiiram Rao, 306
Venkatacharyalu v Mohana Panda, 413.
— • V, Raiigacharyalu, 172,

283.

Venkatachella r. Chinnaiya, 498, 507.

— V. Parvatham, 647.

— V. Thathammal, 865, 868.
Venkatachellam v, Butchamma, 296.

— V. Punishotam, 954.

— V, Venkataswamy, 292.
Venkatadri Appa v. Parthasarathy Appa
Row, 745, 773, 776, 907.
Venkatagiri v. Chandru, 631.

LXXVI

TABLE OF CASES.

Venkata Jagannatha v Veerahadrayya, 372,
745, 844, 845

Vfnkalakrishnamma v, Annapurnamma,

219, 221.

Venkataknshnayya v. Kundurthi Byragi,

413

— V Lakshminarayana,

72, 141, 142, 145, 410
— V Madamma, 903

— V. Venkatratnam, 949,

957.

Venkatalakshmamma v Narasayya, 226
Venkatalingama v Aninachalam, 852
Venkatammal v Andy appa, ,543, 839, 842
Venkata Narasimha v Bhashyakarlu, 529,

571

— — V Govinda Krishna,

146

— V Narayya, 77, 847

— — V Raja Suraneni, 126,

624, 679, 680, 775

— Rao V Siibha Ran, 921, 92 i
Venkalanarayana v. Somaraju, 380, 386,
4^5, 437, 438, 439, 448, 451, 466
Venkalanarayana v Subliainmal, 213, 260,
291. 495, 812, 814 818* 884
V( nkalapathi v Piinnarnma, 222

— V Puttarnma, 188, 189, 825,
826, 827, 836

Venkat apathy v Pappia, 495, 513, 519
Venkdtappa r Jalayya, 954
Venkatappayya v Venkata Ranga 213
Venkatarama r Bliujanga, 740, 742
— Daniodaram, 947

1 Meera Lahai, 500,504,574
— V \enkata Siirya, 744, 718,

885

Veiikalaraman v Sivagiirunatha, 476, 929

930, 937

Venkalaramana v Kasinriranga, 930, 933,
934, 946, 947

— V Narayana, 418, 454

Venkalaramanna v Brammanna, 871
Venkataramanayya Dejappa, 811

— V Vcnkataramana, 427

Venkataramani v Subramania, 509
Venkatarama Rajii v Papamma, 221, 222
Venkataramareddi v Valli Akka^ 958
Venkatramayya v Nagamima, 868
Venkataramayya v Pullayya, 957

— r. Sc'^hainma, 374
Venkataratnam v Seshamma, 374
Venkataratnamma v Sittfcatnamma, 836
Venkatarayudu v Sivarama Krishna, 190,

458, 501, 526, 720

— r. Venkataramayya, 371.
Venkatara/u v Kotayya, 784, 825
Venkatareddi v Rani Saheba of Wadhwan,

791

— • V Kiippareddi, 566, 578
Venkata Row v Tiilja Ram Row, 402, 403
Venkatasami v Kiippaiyan, 451
— r. Palaniappa, 395.

I Venkatasaiya v Venkatacharlu, 249
1 Venkatasubba Rao v Ananda Rao, 779,

I ♦ 78K

— — V Lakshmi Kantamma,

' 883,

I — — V Purushottam, 727.

I — ■ — V Subba Ram, 867

j Venkatasubbamma v Ramayya, 910
I — V Venkamma, 289

‘ Venkalasnbbayya v. Subramanyam, 818
I Venkatasubramanyam Chetti v Thayaram-

1 mal, 50, 624, 625, 68L

I Venkata Sundara v President, II R E.

I Board, 915.

I Venkata Siirya v The ( onrt of Ward^, 70,

1 257, 273, 279, 280, 286, 682, 848, 849,

1 850

i Venkata Siiryanarayana v Ramayya, 398.

' Venkataswami v Siibba Ran 319
' \ enkatesaperumal. In re, 298

I Venkateswara Aiyar v Raman Nambhudri,

404.

— T>en V Shekkhari, 988

— Pattai V Mankavammal. 350,

351, 496, 552, 558, 562, 595,
597, 644, 731 732, 885
— Rao V Adinaiayana, 668,

671.

^ Venkati Rama r Pillati Rama 867
I Venkatraman i Janardhan, 301

! Venkat ramana r Naiayana 418
' Venkalramanna v Brammanna, 554
V( nkat Rao v Namdeo, 880
I Venkatarayudu ? V i nkalai amav>a 371
I Wnkavamma v Oangawa 360 361, 363.
— V Narasamma, 889

— V Venkatramanyyamma 352,

360, 595 652, 660, 662,

663, 664, 741, 882
I Venkayya z' Naiasimha, 432
?; Venkata, 300

' \ enkoba Sab z’ Rangadayaki, 496, 884

I Venku v Mahahnga, 74, 292
, Venknreddi v Venkiireddi, 423, 437, 505.

526.

Vemigopal v Ramanadhan Chetty, 408,

, 409, 413.

I Verabhai v Bai Hiraba, 213, 233, 267
' Vesu V Kannamma, 979

Vettor Ammal v. Poochi Ammal, 483

Vibhiidapriya v Lakshmindra, 930, 933,

j 938, 939.

Vidyagavri v. Narandas, 82, 90. 690
Vidyapurna v Vidyanidhi, 918, 928 932,

' 934, 939, 988.

, Vidyavaruthi e Bahisami, 923, 927, 931,

: 933, 935.

Vigneswara v Bapavya, 508
1 Vijaya v Sripathi, 835

- V Venkatasubba, 313
Vijayananda v Commissioner of I T , 859,

861.

Vijayaratnam v Sudarsana Rao, 213, 859,

' 860, 861, 881.

TABLE OF CASES.

LXXVII

Vijaysingji v. Shivsangji, 228, 229, 236,
237, 244, 250, 264, 268, 723.
Vijiaragha^a Pillai v, Ponnammal, 657.
Vijiaraghdvachariar v. Ramanujachari, 802.
Vijiarangam v, Lakbhuman, 138, 241, 623,
741, 742, 767.

Vilayat Husbam v, Mibrain, 957.

Vinayak v Govind, 795, 796.

— V. Lakshmibai, 622, 681, 742, 767
Vinayek Narayan v. Govindarav, 274.

— Waman Joshi v Gopul Han, 845
Virabhadra v. Guruvenkata, 515.

Viranwali v, Kiindan Lai, 813.

Viraragava v Ramalinga, 51, 249.
Viraragbava v Srinivasa, 935.

Viraramutbi v Singaravelu, 822.

Virasami v Appaswami, 184, 190, 826, 827.
Virasangdppa v. Rudrappa, 186, 740, 741.
Virasvami v Ayyaswami, 491.

Viravard v. Surydnarayana, 557.

Virayya v Parthasaratbi Appa Rao, 418.
Vinipaksbappa v. Nilgangava, 299.

— V, Sbidapa, 313.

Visalaksbi v Sivaramien, 275
Visalatcbmi v Sublni Pillai, 867
Visalatcby v Annaswami, 356, 372, 830.
Visbnii V Akkamma, 91.

— V (rdnesb, 531.

V Krivsbnan, 70, 248, 290, 407.

— V Laksbmi, 237

— V Manjamma, 831

V Ramchandra, 474, 481.

— V Udayavarma, 979.

— Ndmbudn v Akkamma, 973.
Visvanadba v Bungdni, 846
Viswanadbd v. Moottoo Moodely, 319.
Vibbvdndtb V. Kesbavbbat, 430

— V. Knsbnaji, 578

— V. Parkasb Cbandra, 413.

— V, Sbankargir, -428

Visvanadban v T^njaneyabi, 902
Visvanalba v. Doraiswami, 38, 74, 93, 94.

537, 651, 690, 763
— Clietty V Ramanadban, 400
Vibvdiiatbaswamy v Kamiilii Ammal, 853,

854, 858

Visvasundara v Pallamrajii, 362, 376.

— V, Somasundara, 51, 57, 223,
224, 248, 284

Viswanatba Ramji v. Rabibai, 252.
Visweswara v. Suriya Rao, 314, 508, 511,

516, 618

Vitbagauda v. Secy, of Slate, 228.

Vitbal V. Prablad, 545.

— V, Sbivdppa, 395, 450
Vitbaldas v Jesbubai, 617, 618, 619.

— V Vadilal, 552, 732.

Vitbal Laxman v, Yamutai, 276.

Vitbalrao v Ramrao, 610, 666.

— V Vitbalrao, 452.

Vitbal Tukaram r. Balu Bapu, 678, 753,

757, 764.

Vitbappa v Savilri, 661, 742, 767, 768.

Vitboba V. Balsingb, 94.

— V, Bapu, 268.

— V, Hariba, 363.

Vitbii V. Govind, 656, 832.

— Dondi r. Babaji, 380.

Vitla Butten v Yamunamma, 465, 495, 883.
Vitta Tayaramma v. Cbatakondu Sivayya,

655, 656.

Vrijbbukandas v Bai Parvati, 527, 742,

767.

— V, Dayaram, 519, 820.
Vutsavoy v Viitsavoy, 652.

Vrandavandas v Yamunabai, 492, 495
Vyankapacbarya r Yamanaswami, 956.
Vyascbarya if Vcnkubai, 274.

Vyas Gbimanlal r Vyas Ramcbandra, 228,

244, 287.

VVdinadd v Nagdinmal, 353, 903.

Vytld Sitanna r Maiivada Viranna, 799,

800, 801.

Vytbilmga v Temple Committee, Tinne-

velly, 946.

Vytbianatba t Varadaraja, 374, 376.
Vytbinatba r Yeggia, 354, 663

w

Wdgbeld Rdi^-ingji v Sbeikb Masbiddin,

86, 310.

Wabid All v. Ton Ram, 774.

Walaiti Ram v Shadi Ram, 957.

Walbai V. Tlocrbai, 246
Walian v. Bankb Bebari Persbad, 315
Wallis V Solicitor (rcii , New Zealand, 891.
Wannatben v Kayakadatb, 866.

Watkins t Administrator-Genl. of Bengal.

899.

Watson r Ram Cband Dull, 390, 926.

- V Sham Lai Mitter, 308, 309.

— V. Watson, 898
Waziii V (^angd Ram, 786.

Wa/ir V Moti Singb, 883.

Webb V. Macpherson, 874.

Wenlock v. River Dee Co , 514.

Widyavati v Mt Rabmat Bi, 818
Widyawanti v Jai Dayal, 412.

Wilcock, In re, Kay v Dewbiirst, 898
Wilmer.'s Trust, In re, Moore v. Wmsfield,
• 890.

Wingrove v. Wingrove, 881.

Wodeyer v Ganapathy, 71.

Wooma Devi v. Gokoolanund, 41, 50, 242
» 2.55, 281, 658, 659, 756.

— Persbad v. Girisb Cbunder, 726.
Wopendra v. Thandla, 617.

Wullubhram v. Bijlee, 748.

Y

Yadao v. Namdeo, 214, 228, 233.
Yad Ram v. Umarao Singh, 958.
Yamuna v, Jamuna, 218.

Lxxvin

TABLE OF CASES.

Yamunabai v. Manubai, 829.

— V. Narayan, 189.

Yanamandra Papiah v, Lanka, 415
Yamnava v. Laxman, 246
\anumiila v. Boochia, 371.

Yarlagadda v Yarlagudda, 77, 571, 835,
836, 844, 846, 849, 860, 861
Yechiin Ramamurthi v Yechun Ramanna,

540

Yekevamian v Agniswarian, 533
Yellappa v Tippanna, 337.

Yenu inula v, Ramandora, 342, 346, 855,

857, 858

Yerukola v Yerukola, 384.

Yeshvanta v Antii, 278, 801, 802
Yeshwantrao v Ka‘^liibai, 821, 823

Yethirajulu v, Mukunthu, 359, 361, 887,

900, 903.

— V, Govmdaraziilii, 374, 378.

z

Zafar Ahsan v, Ziibaida Khahin, 306.
Zamindar of Karvetnagar v. Trustee T T.

Devasthanams, 445.

— — Merangi v Satrucharla, 77.

— — Polavaiam v Maharajah of

Pittapur, 311

Zarif-un nis^^a v Shafiq-uz-zaman, 75
Zipru V Bomptya, 651, 690
Zohoioodeen v Baharoollah, 18.

ERRATA

I XXIX

P. 74, note (y), for Sarojin read Sanjivi. .

P. 86, note /o; ‘ rules of English law and found applicable' leaa

‘lules of English law if found applicable’.

P. 102, note (d), for N.W.N. read M.W.N.

P. 126, note (yj, for Yol. XXX read vol. XXIX.

P. 161, note (m)^ foi so ineligible lead ineligibility.

P. 194, note (p), for Putrasangra vidhi read Putiasangiahavidhi.

P. 231, line 15, foi and to the duty read and the dut).

P. 270, note (x), for 10 Pat. 642 read 12 Pat. 612.

P. 288, note (iv), foi 7 VV.R. 388 read 7 W.R., 338.

P. 371, note (h)^ for Kedar Nath v, Pathan Singh read Kedai Nath
V, Rdtan Singh (1910) 37 l.\. 161, 32 All., dl5

P. 376, note (z)^ for 15 Bom., 301 read 15 Bom.. 201

P 385, line 9, for ‘ a copaitener ’ read ‘ the kaiLi ’

P. 518, note (bj^ foi as leversioneis read or reveisioneis.

P. 553, note (n)^ for Act XXI of 1928 lead Act XII of 1928.

P. 571, note (f)^y delete (1875) 2 B H.C , 148

P 580, line 3 fioin bottom, for infoimdiy’®)'en^/ infiinnlv.

P. 634, line 9, delete ‘collateral’ befoie ‘descendants ’

P. 744, line 2, foi as sliidhana read as not sliidhana.

P. 798, line 7, foi vests read lesls.

P. 988, line 7 from bottom, foi ‘ appeilion ’ lead ‘ appeitain.*

ADDENDA

P. 48, note (v), add Afiaiaika was of the twelfth century.

P. 59, add to note (i ), The fourth point of diffeience mentioned below is
now removed by Act XVIII of 1937.

P. 211, note (a)^ and p. 905, note (z), Varada Narayana v. Vengu AmmaL
Rep*ortcd also as Naiayana v. Vengu ArnmaL [1938] Mad., 621.

P. 238, note (h), add. As to Piare Lai v. Hem Chand A.I.R. 1938 La’' ,
539, see page 72.1 note (q),

P. 310, note (x^) and p. 402, note after A.I.R. 1938 P.C. 181, add
65, I.A., 213.

P. 374, note (o) and p. 370, note (y^^)^ after (193J3)»1 M.L.J 216, add
[J938J Mad., 696.

P. 400, note (e), add at the end. Dissenting from Ragunathji y .The Bank
of Bombay (1909) 34 Bom., 72, a different view is expressed in
Naiinu Shankai v. Bhashyam Ayyangar (1938) 2 M L.J.
256. If it means that the nature and degree of enquiiy in the
case of a loan taken foi a trade or business and a loan borrowed
by the manager of an ordinary joint family are in all respects the
same, then it goes beyond the authorities cited in note ( c) and
this note. And 34 Bom., 72 has been followed in 35 Mad., 692, 695.

LXXX

ADDENDA

P. 496, note (n)^ after A.I.R. 1938, Mad., 102, add [1938] Mad., 410.

P. 496, note (1), p. 562, note (m) and p. 855, note (j), after (1938)
1 M.L.J. 45, add [1938] Mad., 315.

P 732, note (v), add. Except in the matter of successions befoie the Act,
and of successions after the Act to religious offices and trustee-
ships, this question will not arise as to other disqualifications
which are removed in the Mitakshara School. See § 595.

P. 756, note (f), after A.I.R. 1938 All , 625, add [1938] All., 196.

P. 794, note (t) and p. 804, note (o), after (1938) 1 M.L.J. , 296, add
[1938] Mad., 688.

P. 801, note (a), add, Challa Subbiah Sastri \ , Palun Pattabhiramayya,
(1908) 31 Mad., 446.

P. 835, note (j), after A.I.R. 1937 Boin , 358, add [1938] Bom.. 1.

HINDU LAW AND USAGE

CHAPTER I.

THE NATURE AND ORIGIN OF HINDU LAW

& 1. Hindu Law is the law of the Smritis as expounded in Earlier Views^
the Sanskrit Commentaries and Digests which, as modified
and supplemented by custom, is administered by the Courts.

Till about the eighties of the last century, two extreme views
were entertained as to its nature and origin. According to
one view, it was legislation by sages of smni-divine authority
or, as was put later, by ancient legislative assemblies (a).

According to the other view, the Smriti law “does not, as a
whole, lepiesent a set of rules ever actually administered in
Hindustan. It is, in great part, an ideal picture of that which,
in the view of the. Brahmins, ought to be the law” (6). The
two opposed views, themselves more or less^speculative, were
natural at a time when neither the detailed investigation of
the souices of Hindu law nor the reconstruction of the history
of ancient India, with tolerable accuracy, had made sufficient
progiess. The publication of the complete editions and
translations of the Smritis and the discovery and tianslation
of Commentaries and Digests and the increase in the number
of workers in the field marked an epoch in the study of the
histoiy of Hindu law.

As a result of the researches and labours of many scholars
and the far greater attention paid to the subject, it has become
quite evident tljat neither of the views stated above as to the
natiiie and origin of Hindu law is, at all, correct. The
Smritis were in part based upon actual usages existing at the Basis ol
time or theretofore and, in part, on rules framed by the Hindu
jurists and rulers of the country. They did not however
purport to be exhaustive and therefore provided for the
recognition of the usages which they had not* incorpor^ated.

The much later Commentaries and Digests were equally the
exponents of the usages of their times in those parts of India

(a) P. C Tagore, Preface to Vivadachintamani ; Sarvadhikari,

2nd Edn, 125-127.

ih) Maine, “Ancient Law,’’ referring to the Code of Mann (12th
Edn.) 17-18; Nelson’s “View of Hindu Law,” preface and Ch. I;

Nelson’s Scientific Study of Hindu Law (1881) ; Mr. Ellis says: “The
law of the Smritis, unless under various modifications, has never been
the law of the Tamil and cognate nations” (2 Stra. H. L. 163).

Dr Burnell considers that the original Smritis might represent the
actual laws, though of very limited application but that the Digests
were merely speculative treatises (Biimeirs Introduction to the
Dayavibhaga, 13, 14).

2

NATURE AND ORIGIN OF HINDU iJiW. [CHAP.

wheie they were composed (c). And in the guise of
commenting, they developed and stated the rules ih greater
detail, differentiated between the Smriti rules which continued
to be in force and those which had become obsolete and
incorporated also the new usages which had sprung up.

Their authority
and com-
position.

Recognised
manuals of
instruction.

Their practical
nature.

Enforced by
rulers.

§ 2. Both the ancient Smntis and the subsequent
commentaries were evidently recognised as authoiitativc
statements of law by the rulers and by the communities in the
vaiious parts of India. They were mostly composed under
the authority of the rulers themselves or by learned and
influential persons who were eithei their ministeis or spiritual
advisers. The Smritis and Digests were not private law books
but were the recognised authorities in the couits and tribunals
of the country. The Smntis or the Dharmasastras formed part
of the piescnlied courses of studies foi the Brahmins and the
Kshatriyas as well as for the rulers of the country (d) .
Obviously, the rules in the Smntis, which vere sometimes all
too brief, were s ipplemented by oral instiuction m the law
schools whose duty it was to tiain peisons to become
Dharmasaslrins. And these were the puiohits of the rulers
and judges in the King’s courts and were also to be found
amongst his ministers and oflicials There can he no doubt
that the Smnti rules were concerned with the
piactical administration of the law^ And theie is nothing
very ideal in the actual rules of civil or criminal law as
stated in the law books. We have no positive information
as to the writers of the Smntis but it is obvious that as
lepresenting different Vedic or law schools, they must have
had consideiable influence in the community among whom
they lived and wrote their works. The Kings and subordinate
rulers of the country, whatever their caste, race or religion,
found It politic to enforce the law of the Smritis which
enjoined the people not to sweive from their duties, based
as it was on the authority of the Vedas. It became a
commonplace of statesmanship to uphold the system of castes
and 01 dels of Hindu society, with their rights and duties

(r) “The truth is that commentaries and digests like the Mitakshara
and Viramitrodaya owe their binding force not to their promulgation
by any sovereign authority, but to the respect due to their authors
and still more to the fact of their being in accordance with prevailing
popular sentiment and practice Their doctrines may often have
moulded usage but still more frequently they have themselves been
moulded according to prevailing usage of which they are only the*
recorded expression.” Jogdamba Koer v Secretary of State for India
in Council (1B89) 16 Cal. 367, 375 j Maharaja of Kolhapur v*
Sundaram (1925) 4R Mad. 1, 65, Ganapathi Iyer, 203, 204.

id) Arthas. L. 5; Shamasastri, 10; Manu VII, 43; Yajn. I. 3; 11. 2^

PARAS. 2 & 3.] WORKS BY RULERS AND MINISTERS

3

SO as to prevent any subversion of civil authority (c). The
Dharmasa^rins and the rulers were therefore in close
alliance. While the several Smritis were probably composed
in different parts of India, at different times, under the
authority of different rulers, the tendency, owing to the
frequent changes in the political ordering of the country
and to increased travel and interchange of ideas, was to
treat them all as of equal authority, subject to the single
exception of the Code of Manu. The Smritis quoted one
another and tended more and more to supplement ot modify
one another.

§ 3. More definite information is available as to the
Sanskrit Commenlaries and Digests. They were either written
by Hindu kings or their ministers or at least under their
auspices and by their order (/). A commentary on the Code
of Manu was written in the 11th century by Dharesvara oi
King Bhoja of Dhifra in Malwa. A little later, Vijnanesvara
wrote his Mitakshara on the Smriti of Yafnavalkya undei
the auspices of King Vikramarka or Vikramaditya of Kalyan
in Hyderabad. King Apararka of Konkan, wiole his com-
mentary on the Yajnavalkya Smrili in the 12th century.
Jimutavahana, the author of the Dayabhaga, was, according
to tradition, either a very influential minister or a great
judge in the court of one of the Bengal Kings. Chandesvara,
the author of the Vivada Ratnakara, was the chief
minister of a King of Mithila in the 14th century.
Madhavacharya, the great Piime Minister of the Vizia-
nagaram Kings, wrote his Parasara Madhaviyam in the same
century. About, the same time, Visvesvarabhatta wrote his
Subodhini, a commentary on the Mitakshara and a treatise
Madana Parijata under the order of King Madanapala of
Kashtha in Northern India who was also responsible for the
recovery of the commentary of Medhatithi on Manu.
Lakshmi Devi, a queen of Mithila, caused Misarumisra to
compose his Vivadachandra just about the period. In •the
15th century, Vachaspatimisra, who was himself a descend-
ent of King Harasinha Deva of Mithila, wrote the Vivada-
chintamani under the auspices of King Bhairavendra, a
ruler of Mithila. King Pratapa Rudra Deva of Orissa wrote
the Sarasvati Vilasa. Nandapandita, the author of the
Dattaka Mimamsa, wrote a commentary on the Vishnu Smriti,
called the Vai jay anti under the auspices of an influential
chief, Kesavanayaka alias Tammasanayaka. Nilakantha, the

(e) Manu. VII 31, 35-37; Yajn., I 360-361; Arthas, I, 3;
Shama$a<«tri, 8.

(/) Jolly TL.L. 27, 28, 32

Commentaries
written by
rulers and
ministers.

4

NATURE AND ORIGIN OF HINDU LAW. [CHAP. I.

author of the Vyavahara Mayukha, composed it under the
orders of Bhagavanta Deva, a Bundella chieftain *who ruled
at Bhareha, near the Jumna. Mitramisra composed his
Viramitrodaya by the command of Virasinha, the ruler of
Orchcha and Datia.

Recognition

during

Muhammadan

Rule.

§ 4 Much more significant and decisive is the fact, that,
after the establishment of the Muhammadan Rule in the
country, the Smriti law continued to be fully recognised and
enforced. Two instances will serve In the 16th century,
Dalapatu wrote an encyclopaedic work, on Dharmasastra,
called the Nnsimha-prasada. He was a minister of the
Nizamshdh Dynasty of Ahmednagar which ruled at
Devagiri (Dowlatabad) and wrote his work, no doubt,
under the auspices of the Muhammadan ruler, who is
extolled in several stanzas (g). Todaramalla, the famous
finance niinislei of the Moghul Emperor Akbar, compiled an
encyclopaedic woik on civil and religiQus law known as
Todarananda

His Vyavahara Saukhya, Mr Kane says, deals with “several
topics of judicial procedure, such as the King’s duty to look
into disputes, the sabha^ judge, meaning of the word Vyava-
hara^ enumeration of eighteen vyavahaiapadas, time and place
of vyavahara, the plaint, the leply, the agent of the parties,
the supenorih of one mode of proof over another, witnesses,
documents, possession, inference, ordeals and oaths, grades
of punishments and fines” (i) It relies not only on the
Smritis but also on the Kalpataru, the Panjata, the
Mitakshara, the Ratnakara and the Halayudha. During the
Muhammadan rule in India, while Hindr Criminal Law
ceased to be enforced, the Hindu Civil Law continued to be
enforced amongst Hindus and the policy whic h was followed
by the Muhammadan rulers was continued after the advent
of the British.

Agreement
with Hindu
life and
sentiment.

§ 5. It *is plain that the earliest Sanskrit writings
eviderVee a stale of the law, which, allowing for the lapse of
time, is the natural antecedent of that which now exists. It is
still i;nore obvious that the later commentatois describe a state
of things, which, in its general features and in most of its
details, corresponds fairly enough with the broad facts of
Hindu life; for instance, in reference to the condition of the

(g) Dr. Jolly and Mr. Kane who have examined this work say
that the Benares Sanskrit College has a complete manuscript of this
work. Kane, 406.

{h) This work is cited in the V. Mayukha, 22 (Mandlik’s trans.'.
(i) Kane, 421.

PARAS. 5 & 5-a.I applicable to all classes.

5

undivided family, the principles and order of inheritance,
the rules regulating marriage and adoption and the like.
There is aVnple proof of the latter assumption (y). If the law
were not substantially in accordance with popular feeling, it
seems inconceivable that those who are most interested in
disclosing the fact should unite in a conspiracy to conceal it.

§ 5-a. Again there can be little doubt that such of those
communities, aboriginal or other, who had customs of their
own and were not fully subject to the Hindu Law in all its
details must have gradually come under its sway. ^ For one
thing, Hindu Law must have been enforced from ancient
times by the Hindu rulers, as a territorial law, throughout
the Aryavarta (A;) applicable to all alike, except where a
custom to the contrary was made out. This was, as will
appear presently, fully recognised by the Smritis themselves.
Customs, which were wholly discordant with the Dharma-
sastras, were probably ignored or rejected. While on the
one hand, the Smfitis in many instances, must have allowed
Custom to have an independent existence, ft was inevitable
that the customs themselves must have been largely modified,
where they were not superseded, by the Smriti law. In the
next place, a written law, especially claiming a Divine origin
and recognised by the ruleis and the learned classes would
easily prevail as against the unwritten laws of less organised
or less advanced communities, for, it is a matter of common
experience that it is very difficult to set up and prove, by
unimpeachable evidence, a usage against the written law.

The assumption that Hindu law was applicable only to
those who believed in the Hindu religion in the strictest sense
has no basis in ^act. Apart from the fact that Hindu religion
has, in practice, shown much more accommodation and
elasticity than it does in theory, communities so widely sepa-
rated in religion as Hindus, Jains and Buddhists have
followed substantially the broad features of Hindu Law as
laid down in the Smritis. Indications are nof wanting that
Sudras also were regarded as Aryans for the purpose's of

(/) As regards Western India, we have a body of custom* which
cover the whole surface of domestic law, laboriously ascertained by
local inquiry, and recorded by Mr. Steele, whilst many of the most
important decisions in Borrodaile’s Reports were also passed upon
the testimony of living witnesses. As regards the United Provinces
and the Punjab, we have similar evidence of the existing usages of
Hindus proper, Jains, Jats and Sikhs, in the decisions of the courts
of those provinces.

(k) The term Aryavarta is explained by Mitramisra in his
Viramitrodayatika on Yajn. 1, 2 as including the whole of Bharata-
varsha (India) (Gharpure’s trans. 8-9); Manu II, 22.

fibidu Law as
territorial law.

^Hindus’ an
elastic term.

6

^ATLRE AND ORIGIN OF HINDU LAW. [CHAP. 1.

Fusion of
Aryans and
Drayidians.

the civil law for the Smritis took note of them and were
expressly made Applicable to them as Wfell. A famous
text of Yajnavalkya 111, 135-136) states the^ order of
succession as applicable to all classes. The opposite
view is due to the undoubted fact that the religious law
predominates in the Smritis and regulates the rights and
duties of the various castes But the Sudras who formed the
bulk of the population of Aryavarta were undoubtedly
governed by the civil law of the Smritis amongst themselves
and they were also Hindus in religion. Even on such a
question, as marriage, the fact that in early times, a Dvija
could marry a Sudra woman shows that there was no sharp
distinction of Aryans and non-Aryans and the offspring of
such mairiages were certainly regarded as Aryans The
caste system itself proceeds upon the basis of the Sudras
being part of the Aryan community. More significant
perhaps is the fac t that on such an intimate and vital matter
as funeral rites, the issue of Vasishtha w^ere assigned as manes
or pitrudeimtas for Sudras ( /M .

As regards Southern India, the original Dravidian people,
who had a civilisation of their own, came under the influence
of the Aryan civilisation and the Aiyan laws and both
blended together into the Hindu community and in the
process of assimilation which has gone on for centuries, they
have also adopted the laws and usages of the Aryans. They
have retained some of their original customs, perhaps in a
modified form Some of their deities have been taken into
the Hindu Pantheon The enormous influence of the Itihasas
and the Puranas and their translations and adaptations in
the Dravidian languages spiead the Hindu culture and Hindu
law^ throughout Southern India where, as the inscriptions
show, the Dravidian communities founded many Hindu
temples and made numerous endowments They have been

(/) Mann II, 18, 24, Arlhas 111, 13, 1 (Dr. Jolly’s Edn.) ;
Miama-astn 222-223, Jayaswal, M & \, 180; It is only the pratdomajas
and ‘ tlv’ fxititas that were excluded from the Aryan community.
Dr. jolly’s statement (L & (', 95) that the Sinrilis were written by
Brahmins foi Brahmins is not correct The Smritis are generally
made applicable to all the (abt(s>, while, for the religious rules, the
words ^Dvija’ and ‘Ary a’ are treated as convertible terms, for all other
purposes, the Sudra is included in the Aryan system. In many places,
the term Brahmin, as the commentators point out, means a ‘Dvija’
and not only a Brahmin We must not forget the mixed character
of the Smriti compilations dealing with different castes for different
purposes and with all castes for many purposes and that, in the early
days, the caste system was accepted without any demur.

(/^) Manu III, 197, these pitriis known as Sukalins were those
who “complete, accomplish, sacrificial rites”, Medhatithi, Jha, IT, ii,
p. 217.

PARAS. 5a & 6.] MIXED CHARACTER OF THE SMRITIS.

7

much Hindus in religion as the Hindus in the rest of
India (m).

I

Reference may be made to the Thesawaleme, a compilation
•of Tamil customs, made in 1707, by the Dutch Government
•of Ceylon and the resemblances between the rules contained
in it and the rules in Hindu Law are noticeable. It
•distinguishes between hereditary property, acquired property
and dowry which closely correspond to the ancestral
property, self-acquired property and stridhanam, though the
incidents may not in all cases, be the same (n). ^

6. Hindu law, as administered to-day, is only a part
•of the Vyavahara law of the Smritis and the latter, in its
•turn, is only a fraction of the rules contained in the Smritis,
dealing with a wide variety of subjects, which have little
or no connection with Hindu law as we understand it.
According to Hindu conception, law in the modern sense
was only a branch of Dharma which has the widest signi-
fication. Dharma includes religious, n^oral, social and
legal duties and can only be defined by its contents (o).
The Mitakshara mentions the six divisions of Dharma, of
which the Smritis treat, as the duties of castes, the duties
of orders or asramas, the duties of orders of particular
oastes, the special duties of kings and others, the secondary
duties which are enjoined for transgression of prescribed
duties and the common duties of all men (p). The Hindu
Dharmasastras thus deal with the religious and moral law,
the duties of castes and Kings as well as civil and criminal
law. The statement in the Code of Manu that the Sruti,
the Smriti, customs of virtuous men and one’s own coii-

(m) The influence of Kamha Ramayanam, which is an original
work and nol a translation, and the other best Tamil literature, in
blending the two peoples and the two cultures must have been
enormous. That the Aryan and Dravidian cultures fused together
even during the fiist centuries of the Christian Era seems to be fairly
•clear so much so that the eight forms of marriages of the Aryan
•Code are also mentioned in the Sutras of the Tholkappiam (K.^ A N.
Sastn ‘The Colas’, 75). The question who are Sumerians » and who
are Dravidians seems still to be an open question (Sir John Mar^^hall,
Mohenjo-Daro and the Indus Civilisation, I, 109-110).

in) See Ganapathi Iyer, 35. «

(o) Wilson’s Glossary, p. 137; Dharma means law, virtue, legal
•or moral duty. See Runchordas v. Parvati Bai (1899) 26, I. A. 71,
23 Bom. 725, 735.

ip) Mitakshara on Yajn. I, 1 (Setlurs Edn., p. 4) ; Varnadharma,
Asramadharma. Varnasramadharma, gunadharma, nimittadharma and
sadharanadharma. The last is not the special dharma of aily one caste
but, being common to all, is naturally omitted in the fivefold division
of varnadharma given by Medhatithi, Govindaraja and Kulliika in
their comments on Manu II. 25.

Thesawakine.

Dharma and
Positive Law.

Mixed

character of
Smritia.

8

NATURE AND ORIGIN OF HINDU LAW. [CHAP. I.

VyaTahara

Uw.

Moulded by
usage and
jurists.

Secular
character of
Vyavahara
law.

science (self-approval) {q) with their widely differing
sanctions, are the four sources of sacred law is sufficient to-
show the mixture of law, religion and morality in the
Dharmasastras. But the Smriti writers knew the distinction
between Vyavahara or the law the breach of which results
in a judicial proceeding and the law in the widest sense.
Yajnavalkya lays down that a violation of a rule of law
or of an established usage results in one of the titles of
law (r). Narada explains that “the practice of duty having
died out among mankind, actions at law (vyavahara) have
been introduced and the King has been appointed to decide
them because he has the authority to punish” (5) Hindu
lawyers generally dis*^**iguished the rules relating to religi-
ous and moral observances and expiation (achara and
prayaschitta) from those relating to positive law {vyava-
hara) (/). From the researches of scholars as well as from
the Smritis themselves, it is now abundantly clear that the
rules of Vyavahara or civil law, relating to marriage,
adoption, partition and inheritance in the Smritis were, in
the main, diawn \rom actual usages, though, to an appreci-
able extent, they were modified or supplemented by the
opinions of Hindu juiists.

Again and again, the Smritis declaie that customs must
be enforced and that they either overrule or supplement the
Smriti rules (a). The importance attached by the Smritis^
to custom as a lesidual and overriding body of positive law
indicates, therefore, that the Smritis themselves were laigely
based upon previously existing usages. Medhatithi, m his
commentary on Manu, says that the Smritis are only codi-
fications of the usages of viituous men and th^it, codification
being immaterial, customs are also included under the term
Smriti (v). According to the Mitakshara, most texts aie nieie-

iq) Mann 11. 6, 12, Yajn I. 7 (Setliir, 8) adds as the fifth souice-
of Dharma “the c(esire produced by a virtuous resolve” ( Mandlik, 159).

(r) *Yvjn If. 5 (Setlur, 240, 241). Mandlik, 201.

(s) Narada S B. E Vol. 3d, page 5.

{t) Yajnavalkya Smriti is arranged in three chapters Achaia.
Vyavahara and Prayaschitta The separation of the civil from the
religious law was carried further by Narada and Brihaspati who confine
themselves entirely to Vyavahara law Vyavahara means law in the
modern sense, legal business, legal procedure, litigation, dispute. See
also C.H.I., I, 281.

(tt) Nar. I, 40 (S B.E Vol. 33, 15); Yajn. I, 156 (Mandlik 181);
Manu VIIl 3, 41; Brih. IT 28; Katyayana’s text cited in note 1 ohi
page 3 of Dr. Jolly’s ‘L & C.

(v) Jha, Medhatithi’s Bhashya, Vol. I, part I, 211-212.

PARAS. 6 & 7.]

CUSTOMARY LAW.

recitals of that which is notorious to 'the world (w). The
Smritichandrika clearly says that Smritis like grammar and
the like embody usages recognised from the earliest times
and that the modes of acquisition by birth etc. referred to
in the Smritis are the modes recognised by popular
practice (:r). The Vyavahara Mayukha states that the
science of law, like grammar, is based upon usage (y). And
the Viramitrodaya explains that the differences in the Smritis
were, in part, due to different local customs (z).

Conclusive proof of the dependence of the Smritis on
customary law is furnished by the reluctant recognition
accorded by them to the Rakshasa, the Paisacha and the
Asura forms of marriage. These could *not have possibly
derived from the religious law which censured them but
must have been due only to usage. Similarly, six or seven
of the secondary sons must have found their way into the
Hindu system owing to the usages of a primitive age. So
also a Brahmin, A Kshatriya or a Vaisya, taking wives from
castes other than his own, was clearly not k)r the fulfilment
of Dharma. The custom of marrying one’s maternal uncle’s
daughter or paternal aunt’s daughter, on the face of it
contrary to the lule of prohibited degrees laid down by
Yajnavalkya, was expressly recognised and mentioned by
two Smritis as valid only by a special custom (a). The
recognition by the Smritis of illegitimate sons of Dvijas and
Sudras and their rights certainly rested on custom and not
on religious law (6). The licensing of gambling and prize-
fighting was not the result of any religious law but was
probably due either to communal pressure or to King’s law.

§ 7. In the Brahmana and Sutra periods, the Aryans Arthasastras.
were not wholly devoted to the performances of sacrifices,
religious ceremonies and to metaphysical speculations but
must have enjoyed an equally large secular life. It was
usual for ancient Hindu writers to deal not only^ with Dharma
but also with Artha, the second of the objects of humani life

iw) Mit. I. IV 14, S.HL.B, 387.

(jc) See the Smnlichantlrika (trans.) I, 27.

(y) Mandlik 85; Jolly, L & C, 96.

(z) Viramit. Ch. II, part II, para 19; SarkaPs trans., 127; Setliir’s
pt.. 2, 370.

ia) Baudh I. 1, 2, 1-6 (S.B.E. Vol. 14, 146, 147); Brih. II. 2930
(S.B.E. Vol. 33, 287).

(6) Manu IX. 179; Yajn. II, 133; Mandlik, 219.

10

NATURE AND ORIGIN OF HINDU LAW. [CHAP. 1.

Kautilya**

Arthasastra.

in Arthasastras or woHca dealing with the science of politics,
jurisprudence and practical life (c).

Unfortunately, owing to the disappearance of stfch works,
the distorted picture of an Aryan society wholly dominated
by sacrifices and rituals remained with the writers on Hindu
Law throughout the last century with the result that their
views about the origin and nature of Hindu Law were
materially affected by it But the recent discovery of
Kautilya’s Arthasastra has enabled scholars and others to
arrive at a juster appreciation of ancient Hindu life and
society (d) . This treatise describes the complete Indian
polity, probably of the Mauryan age, its land system, its
fiscal system, itSr law and administration and its social
organization, besides throwing unexpected sidelights on
various aspects of life In the Cambridge History of India,
Di. F W. Thomas makes it the basis of a chapter on the
social and political organization of the Mauryan empire
under Chandragupta (c. 321 B.C. to 298 B.C ) and his
successors (e). ^While all are agreed as to the importance
of the Arthasastra in describing early Hindu Society,
opinions have differed as to its date and authorship. The
authorship is ascribed, both in the work and by long tradi-
tion, to Vishnugupta whose patronymic was Chanakya and
whose nom de plume was Kautilya (/). The early Jain«

(OK V Rangahwami lyengar^s Anoienl Indian Economic
Thought, 12-22, Bharadwaja, Brihaspati, Prachetas Manu, Visalaksha
and llsanas are mentioned among the authors on Arthasastra, Dandaniti
or Rajaniti. The Smntichandnka refers to Arthasastras as manuals
of popular usage XI, i, 8

(d) Dr. Shama Sastri who discovered it has published both the
Sanskrit text and an English translation separately and Dr Jolly and
Dr. Schmidt have also edited the text with*' an introduction.
Dr T Ganapathi Sastri has also published the text with a commentary
of his own in Sanskrit (Trivandrum Sanskrit series).

(e) Vol I Ch XIX

(/) Dr Jolly’s (Introdn. 29, 47) conjecture that a theoretician
wrote It IS purely subjective. The shrewd practu al insight which it
displays with Us wealth of circumstantial detail indicates a man of
action intimately connected with the system he is describing. Its
beliefs In magic and witchcraft were the limitations of his age as of
much later ages m all countries Dr Jolly, howevei, concedes that
much of Its matter and its leading' doctrines may be older and even
pre-Buddhistic “Its language is archaic and abounds in rare and
difficult terms” (Jolly Introdn. 5). Dr. Keith doubts whether
Chanakya would have referred to himself as Kautilya (crooked). The
humorous use of a nickname’ evidently earned by his policy is in
keeping with the use of the nicknames of his predecessors Kauna-
padanta for Bhisma, Vatavyadhi for Uddhava, Pisiina for Narada and
Bahudantiputra for Indra. According to Dr. Thomas, it can, with
certainty be dated in or near the Mauryan period. (C.H.I. I. 482.)
Dr. Charpentier and Professor Hopkins concede that it may possibly
be the real work of Chanakya or Kautilya written about 300 B.C»
(CH.I. 1. 151. 294).

PARAS. 7 & 8.]

kautilya’s arthasastra.

11

Buddhist and Hindu traditions agree that the last of the
Nandas was dethroned by Chdndragupta, the founder of the
Maqryail dynasty, with the aid of Chanakya (g). The
Vishnupurana, the Nitisara of Kamandaka (not later than
700 A.D. but possibly much earlier), the Panchatantra
(3rd Century A.D.), Dandin (about the 6th Century A.D.)
in his Dasakumaracharita, Bana (about 640 A.D.) in his
Kadambari, and Medhatithi (825-9(X) A.D.) refer to him
as Vishnugupta, Chanakya and Kautilya (h). While the
references in the above works establish that Vishnugupta
alias Chanakya or Kautilya was the author of an Arthasastra
and was of the time of Chandragupta, the specific statements
•of Dandin that the Arthasastra was wr^ten in the interests
of the Maurya and consisted of 6,000 slokas and the
specimens he gives of some its details identify the extant
text as the text before him. The severe and just condemn-
ation by Bana of the work and its general trend makes the
identification almost complete. Incidentally, these early
references make it probable that some centuries must have
elapsed between their dates and the composition of the
Arthasastra ii). Dr. Jolly and Dr. Keith, the former pro-
visionally, assign the work to the 3rd century A.D. (/) ; but
on the whole the view taken by Dr. R. Shamasastri, Dr. Fleet,
Dr. Jacobi, Dr. R. K. Mookerjee, Dr. Jayaswal and Mr. Kane
that it was the work of Chanakya written about 300 B.C.
must be held to be the bettei opinion (p).

§ 8. The Arthasastra of Kautilya, whatever its authority
in ancient times, cannot now be regarded as an authority
in modern Hindu Law. It was finally set aside by the

Law in the
Arthasastra-

(^) C H I. 1 , 164. The early Jain and Buddhist ■writers who state
the tradition are referred to in Dr. Radhakiimud Mookerjee’s
Introduction to N. N. Law's Ancient Hindu Polity, p. xii, xiii.

(A) Shamasastri, Introdn. Medhatithi quotes from Kautilya,
Kane, 270

ii) Its cynical and ruthless state policy baseck on materialistic
(Lokayata) philosophy which he advocates, its elaborate sysiem of
•spies, disguises and stratagems, its methods for filling the King’s
Exchequer, and its detailed provisions regarding liquor, slaughter-
houses and prostitutes, probably best accord with the conditions of
Chandragupta’s age and with his autocratic and highly organised rule.
It IS hardly likely to have been written or to have attained the vogue
it did, after Buddhism with its high ethical teachings became
practically a state religion or after the revival of Brahminism with its
emphasis on Dharma and the increasing ascendency of the Vedantic
atman theory when the Dharmasastra school held the field as against
the Arthasastra school.

(;) Jolly, Arthas. Introdn. 29; Keith, H.S.L. 461.

(yl) Shamasastri, Introdn.; Kane, 99; N. N. Law’s Ancient Hindu
Polity, Introdn.

12

NATURE AND ORIGIN OF HINDU LAW. [CHAP. I.

Dharmasastras {f). Its importance lies in the fact that
It is not a Dharmasastra but a practical treatise, inspired by
Lokayata or materialistic philosophy (A:) and based upon
worldly considerations and the practical needs of a state.
There is no religious motive behind it. Books III and IV
of the Arthasastra are of very great importance for the
history of Hindu Law.

The former styled the ‘Dharmasthiya’ or the law of the
courts deals with Vyavahara or positive law and the latter
entitled ‘The Removal of Thorns’ with the prevention, trial
and punishment of offences and regulations concerning
artisans, merchants, physicians and others The outstanding
facts that emerge from a study of Book III are that the castes
and mixed castes were already in existence, that marriages
between the castes weie not uncommon and that the
distinction between the approved and the unapproved forms
of marriage was a real one. It recognises divorce by mutual
consent except in respect of Dharma mariiages It allows
re-rnarriage of w 'men far more freely than the latei rules
on the subject It contains detailed rules of procedure and
evidence based on actual needs While it refers to the twelve
kinds of sons, it places the aurasa son and the son of the
appointed daughter on an equal footing and declares that the
kshetraja and the adopted son as well as the other secondary
sons are heirs “to him who accepts them as his sons ’ and
not to his collaterals It recognises anulonia unions and
shares are provided for the offspring of such unions but
It disallows pratiloma unions A parasava son begotten
by a Brahmin on a Sudra woman was entitled to one-third
share. It did not recognise the light by biith in ancestral
property, for, like Manu, it negatives the ownership of sons
whose parents are alive (/) It piovides that when theie
are several sons, brothers and cousins, the division of

(/-) Dr lolly, Arthas Introdn 20, Jayaswal, M & Y, 68, 235;
The p*ain meaning of Yajn II, 21 is that the Dharmasastras prevailed
against ihe Arthasastras of Kaiitilya and his predecessors The
laboured gloss of the Mitakshara, centuries later, is unconvincing and
unhistorical Mit , Setlur Edn , 295-297

Kautilya’s stringent rules against a person becoming an ascetic
indicates that the book was probably pre-A'sokan The view of
Jayaswdl (M & Y, 3, 62) and Kane 94, 95 that Yaj Smriti borrows
from Kautilya’s Arthasastra is to be preferred to Dr Jolly’s suggestion
that Kautilya borrows from Yajnavalkya It is really a matter of
dates and Dr Ganapathi Sastri’s view that Kautilya was of the Mauryan
times but borrowed from Yajnavalkya whom he places far earlier than
Kautilya affords no warrant fc^r Dr Jolly’s view
(k) Arthas I, 2 & 4, Shamasastri, 5-9
(/) Jayaswal, M & Y, 263.

PARAS. 8 & 9.]

ANCIENT TRIBUNALS.

13

property is to be made per stirpes. The grounds of exclusion
from inheritance were already known. Its rules of inherit-
ance are, in broad outline, similar to those of the Smritis;
while the daughter is recognised as heir, the widow is not;
and the sapindas and the sakulyas (m) and the teacher
and the student are recognised as heirs. It does not
recognise trial by ordeals.

The Arthasastra furnishes therefore very material evidence
as regards the trustworthy character of the information
given in the Dharmasastras. As Prof. Hopkins says, it
agrees with the Smritis in a multitude of cases showing that
the scheme of law arranged by the Bi^hmins was neither
ideal nor invented but based upon actual life (/i).

§ 9. It is impossible to have a correct picture of the
nature of Hindu Law without some idea of the administra-
tion of justice in early times. Both the Arthasastra and the
Dharmasastias e*stablish the fact that the King was the
fountain of justice (o). In addition to ^he King himself
as a court of ultimate resort, there were four classes of
courts (p). The King’s court was presided over by the
Chief Judge, with the help of counsellors and assessors (q) •
There were three other courts of a popular character called
Puga, Sreni and Kula (r). These were not constituted by
the King. They were not, however, private or arbitration
courts but customary tribunals which were part of the
regular administration of justice and their authority was
fully recognised ( 5 ). Puga was the Court of fellow-towns-

{m) Sapinda# refer to near agnates within three degrees; Sakulyas
did not mean cognates but remoter Sapindas or Samanodakas. c/.
Manu IX, 187.

in) C.II.I. I, 294.

(o) Gaiit. XI, 19-24; Manu, VIII, 13, Yajn. I, 360; II, 1; Mit..
Setlur’s Edn., 218, 226-229.

(p) In the Maury an age, there were two clas 9 e% of courts, the
Dharmasthiya courts for the administration of civil justice dhd the
Kantakasodhana courts for the trial of offences and crimes.

iq) Manu VIII, 9-10; Yajn. II, 1, 3; Nar. Ill, 4, 15, 17; (S B.E.
Vol. XXXIll. 36, 39, 46) ; Brih. I, 2-3; 4, 24; V. Mayukha (Mandlik’s
Edn. 3-4) .

(r) Nar. Tntrodn. I, 7 (S B.E. Vol. XXXIII, 7); Brih. I, 29-30
(S.B.E. Vol. XXXIII, 281).

( 5 ) Dr. Jolly and Sir G. Banerjee call them private or arbitration
courts but they really appear to have been customary courts recognised
by law, from whose decisions appeals successively lay till the King’s
court was reached. Banerjee, M & S, 5th edn., 4, 7; Jolly L & C, 293;
Sankararama Sastri, 38-43; C.H.I., I, 485: Panchayat Courts, permanent
or constituted ad hoc. Offences against caste or religion were tried
by committees of men well-versed in different branches of knowledge;
Gaut. XXVIII. 49; Vas. Ill, 20; Baudh. I, i, 8; Manu XJ!, 111.

Early Judicial
Administration.

14

IVATLRE AND ORIGIN OF HINDU LAW. [CHAP. I-

meii or fellow-villagers, situated in the same locality, town
or village, but of different castes and callings. Srehi was a
court or judicial assembly consisting of the members of
the same trade or calling, whether they belonged to the
different castes oi not. Kula was the judicial assembly of
lelations by blood or rnairiage Kula, Sreni, Puga and

the Court piesided over by the Chief Judge (pradvivaka)
were courts to which persons could resort for the settlement
of their cases and where a cause was previously tiled, he might
appeal in *sU( cession in that oidei to the highei CouitslO-
As the Mitakshaia puts it, ‘‘In a cause decided by the King’s
officeis, although the defeated party is dissatisfied and
thinks the decision to be based on niisappreciation, the case
cannot be cairied again to a Puga or the other tiibunals.
Similaily in a cause decided by a Puga theic is no lesoit
to Sreni oi Kula In the same way in a cause decided by
a Sreni, no recourse is possible to a Kula On the other
hand, in a cause ^ecided by Kula, Sreni and othei tribunals
can be lesorted to In a cause decided by Sreni, Puga and
the othei tribunal can be resorted to And in a cause
decided by a Puga, the Royal Couit can be icsorted to*’ (u).
These infeiioi courts had apparently jurisdiction to decide
all law suits among men, excepting violent crimes (r) An
important feature was that the Smriti or the law book was
mentioned as a ‘member’ of the King’s court. Narada says,.
“Attending to the dictates of law book and adhering to the
opinion of his Chief Judge, let him try causes in due
order*’ (it) It is plain therefore that the Sinritis were the
recognised authorities both in the King’s courts and in the
populai tiibunals Practical rules were laid down as to
what was to happen when two Smritis disagreed. Either
there was an option as stated by Manu or as stated by
Yajnavalkya, that Smriti which followed equity as guided
by the practices of the old prevailed. Rules of procedure
and pleading* were also laid down in great detail. They
must have been fiamed by jurists and rulers and could not
be due to any usage. Eighteen titles of law containing

(s^) Jnatis, sambandhis and handhiis

(t) Bnh I, 29-30; (SBE Vol XXXIII, 281).

(u) Mit on Yajn. II 30 (Setliir’s Edn 357-358) Sankararama
Sastri 41.

(v) Bnh. I, 2, 8; (SBE Vol XXXIII, 281).

(w) Nar Introdn 1-15,35, (SBE Vol XXXIII, 8, 14) Bnh 1,4;
(SBE XXXIII, 277) Dr Jolly refers to a note of Asahaya that
the Smntis mean the composition of Manu, Narada, Visvariipa anci
others Apparently, the Visvarupa referred to is the commentary of
Visvariipa on> the Yajn. Smnti. See also Kane, 247-248.

PARA. 9 .]

SOURCES OF POSITIVE LAW.

15

detailed rules are mentioned by Manu and other writers.

They are (1) non-payment of debts (2) deposit and pledge JWghteen
(3) sale without ownership (4) concerns among partners
(5) resumption of gifts (6) non-payment of wages (7)
non-performance of agreements (8) rescission of sale and
purchase (9) disputes between the owner and his servants
(10) disputes regarding boundaries (11) assault (12)
defamation (13) theft (14) robbery and violence (15)
adultery (16) duties of man and wife (17) partition and
inheritance and (18) gambling and betting {xj. These
titles and their rules appear to have been devised to meet
the needs of an early society (y). While the rules as to
inheritance and some of the rules relating to other titles
appear to have been based only on usage, the other rules
in most of the titles must have been framed as a result of
experience by juiists and ofEcials in the ancient Indian

states. The law of crimes, punishments and fines was
obviously a matter concerning the ruler ai^d they could not
have been framed by the Dharmasastrins without reference
to the requirements of the lulers and their ministers. A bare
perusal of the eighteen titles of law is sufficient to show the Composite
composite character of ancient Hindu Law: it was partly
usage, partly rules and regulations made by the rulers and
partly decisions ai rived at as a result of experience. This
is frankly acknowledged by the Smritis themselves.

Brihaspati says that there are four kinds of laws that are Four sources

to be administered by the King in the decision of a case, o^^^yavahara

“The decision in a doubtful case is by four means, Dharma,

Vyavahaja, Charitta and Raja^asana^ (z). Dharma refers
to moral law (fr lules of justice, equity and good conscience.

Vyavahara refers to civil law as laid down in the Smritis.

Charitra refers to custom and Rajasasana refers to King’s
edicts or ordinances. That this is the correct meaning of
Brihaspati’s text appears from four verses of Katyayana
quoted in the Smritichandrika (a). Both the Naradasmriti

(x) Manu VIII, 4-7.

(y) “This classification seems to have been taken directly from
actual life and fully corresponds to the necessities of the life of those
days” Jolly., L & C, 35.

(z) Brih., II, 18.

(a) Smritichandrika, Vyavaharakanda, 21, 22 (Mysore Edn.). The
difficulty in understanding the exact meaning of this rather obscure
verse (Brih. TI, 18), without the light thrown upon it by Katyayana’s
verses is to be seen in the different attempts at interpretation made
by Dr. Shamasastri, Mr.'Jayaswal and Mr. N N. Law. [Arthas, III,
1, 51 (Dr. Jolly’s Edn.). Shamasastri, 185; Jayaswal, M & Y, 72, 80;
N. N. Law ‘Ancient Hindu Polity*, 122-123. See also C.H.T., I, 485.1
The verses of Katyayana are “Where an offender is convicted and

16

NATURE AND ORIGIN OF HINDU LAW. [CHAP. I.

Limits of

Religious

Influence.

and the Arthasastra of Kautilya state substantially the same
four kinds of laws (b). According to Narada and Kautilya,
these four, Dharma, Vyavahara, Charitra and Rajasasana,
are the bases of legal proceedings, each succeeding one
superseding the previous one. The rules of justice, equity
and good conscience give way to the Vyavahara law of the
Smiitis, which, in its tuin, gives way to customary law and
the King’s equity pievails over all. The conclusion is there-
fore irresistible that Vyavahara or positive law, in the broad
sense, was^ shaped by the rules in the Dharmasastras, by
custom and by the King’s ordinances It is also evident
that, in the absenot^ of lules in the Sinritis, rules of equity
and reason prevailed. Kautilya adds that whenever the
sastra or sacred law is in conflict with the Dharmanyaya,
i.e , King’s law based upon equity or reason, then the latter
shall be held to be authoritative, for there the onginal text
on which the sacied law is based loses its foice The

r

Arthasastra fully desciibes the King’s edicts in Chapter X
of Book II from which it is faiily clear that the edicts
proclaimed laws and lules for the guidance of the people.
Where they were of pennanent value and of geneial applica-
tion, they were probably embodied in the Smritis

10 The religious element in Hindu Law has been
greatly exaggerated. Rules of inheritance were probably
closely connected with the rules i elating to the offering of
funeral oblations in eaily times It has often been said
that he inherits who offeis the pinda It is truei to say that
he offeis the pinda who inherits (c) The nearest heiis
mentioned in the Smritis are the son, grandson and gieat-
grandson They wcie the nearest in blood and would take
the estate No doctrine of spiritual benefit was necessary
to entitle them to the inheritance The rule in Manu IX, 187
“Always to that relative within three degrees who is nearest
to the deceased sapinda, the estate shall belong” carries the
matter ^no further. The duty to offer pindas in early times
must have been laid on those who, according to custom, were

where money is adjudged in favour of the owner, the decision in such
a litigation is said to be by means of Dharma, Where, in the judicial
settlement of disputes, is applied a Smnti rule propounded hv the
seers of Dharma, the adjudication is said to be by Vyavahara. What-
ever is done in consonance with justice or opposed to it, constantly
by reason of a territorial usage is called Charitra The rule which
a king establishes in supersession of Dharma^ Vyavahara and provincial
usage 18 valid, and it is known as the King’s command.” Sankararama
Sastri, 149 154.

ib) Narada Introdn. I 10, 11; (SEE. Vol XXXIII, 7); Arthas.
Ill, I, 51; Shamasastri, 185.

(c) Vishnu XV, 40; “Pinda follows the family name and the
estate”* Manu IX, 142.

PARAS. 10 & 11.] APPLICATION OF HINDU LAW.

17

entitled to inherit the property. In most cases, the rule of
propinquity would have decided who was the man to take
the estate and who was bound to offer the pinda. When
the right to take the estate and the duty to offer the pinda —
for it was only a religious duty, were in the same person,
there was no difficulty. But later, when the estate was
taken by one and the duty to offer the pinda was in another,
the doctrine of spiritual benefit must have played its part.
Then the duty to offer pinda was confounded with the right
to offer it and to take the estate (d) . But whichever* way it is
looked at, it is only an artificial method of arriving at
propinquity. As Dr. Jolly says, the theory that a spiritual
bargain regarding the customary oblations to the deceased
by the taker of the inheritance is the real basis of the whole
Hindu law of Inheritance, is a mistake (d^). Even in the
Bengal school, where the doctrine of spiritual benefit was
fully applied and Jimutavahana deduced from it practical
rules of successiont it was done as much with a view to bring
in more cognates and to redress the inequalities of inherit-
ance as to impress upon the people the duty of offering
pindas. When the religious law and the civil law marched
side by side, the doctrine of spiritual benefit was a living
principle and the Dharmasastrin could co-ordinate the civil
right and the religious obligation. But it is quite another
thing, under present conditions, when there are no longer
legal and social sanctions, for the enforcement of religious
obligations for courts to apply the theory of religious benefit
to cases not expressly covered by the commentaries of the
Dharmasastrins. For, to apply the doctrine, when the
religious duty no longer enforceable, is to convert what
was a living institution into a legal fiction. Yijnanesvara
and those that followed him, by explaining that property is
of secular origin and not the result of the Sastras and that
right by birth is purely a matter of popular recognition,
have helped to secularise Hindu Law enormously. Elqually
Vijnanesvara’s revolutionary definition of sapinda r^ldtion
as one connected by particles of body, irrespective of any
connection with pinda offering, has powerfully helped in the
same direction.

§ 11. Hindu Law is now applied only as a personal
law (e) and its extent and operation are limited by the vari-

(d) E.g., while the duty of agnates to offer pindas continued, the
recognition of the daughter’s son as heir was followed by imposing
the same duty upon him.

(di) Jolly, T.L.L. 168.

(e) Mitar Sen v. Maqbul Hasan Khan (1930) 57 I. A., 313, 315,
35 C.W.N., 89.

2

Application of
Hindu Law in
the present
day.

18

NATURE AND ORIGIN OF HINDU LAW. [CHAP. I. PARA. 11.

ous Civil Courts Acts. As regards the three Presidency Towns
of Calcutta, Madras and Bombay, it is governed by S 223
of the Government of India Act, 1935, which embodies S. 112
of the Act of 1919 { f ) . The Courts are required to apply
Hindu Law in questions regarding succession, inheritance,
marriage or caste or any religious usage or institution ( /^ ) .
Questions relating to adoption, minority and guardianship,
family relations, wills, gifts and partitions aie also governed
by Hindu Law though they are expiessly menlioned only in
some of the Acts and not in the others They aie leally
pait of the topics of succession and inheiitance in the wider
sense in which the Acts have used those expressions Liability
for debts and alienations, other than gifts and bequests, are
not mentioned in either set of Acts, but they aie necessarily
connected with those topics and are equally governed by
Hindu law. The differences in the several enactments do
not mean that the social and family life ^of Hindus should
be differently legaided from province to province. Some
of the enactments only reproduced the terms of still earlier
regulations to which the Company’s Courts had always given
a wide interpietation and had indeed added by administering
other rules of peisonal law as rules of justice, equity and
good conscience {g)

if) Under the charters of the High Courts, in the exercise of their
ordinary original civil jurisdiction, Hindu Law is to govern the right
of parties, in all matters of contract and dealing, among Hindus except
where such matters have been the subject of legislative enactments
(S. 112 of the Act of 1919) The rule of Damduput, under the Hindu
Law of contract, according to which the interest exceeding the amount
of principal cannot be recovered at any one time [Shah Mukhum v.
Baboo Sree Kishen (1886) 12 MIA, 157, 187] has been recognised
to be still in force in Bombay and Calcutta cities Sundarabai v.
Jayavant (1897) 24 Bom 114, This rule applies to mortgages also
even after the enactment of the Transfer of Property Act, Jeewanbai
V. Manordas (1911) 35 Bom, 199, Kunjalal v. Narasambal (1915)
42 Cal, 826, as to the mofussil of Bombay, the Damduput rule
originally applied by Bom Reg V of 1827 is still in force.
Khushalchand v Ibrahim (1866) 3 Bom, HCACJ, 23, Narayan v
Satvajii.i\^12) 9 Bom HC 83, Nobin Chunder v Ramesh (1887)
14 Cal, 781, Mahamaya v. Abdur Rahim [1937] 1 Cal, 450. It is
not in force in Madras Mofussil nor does it appear to have been
applied in the Citv of Madras. Annaji v. Ragubai (1871) 6 M.H C ,
400, Madhwa Siddhanta Onnahini Sabha v. Venkataramanjulu (1903)
26 Mad , 662

(/^) The Madras Civil Courts Act III of 1873, S. 16, Bengal, Agra
and Assam Civil Courts Act, 1887, S. 37; The Punjab Laws Act, 1872,
S. 5, Bombay Reg IV of 1827, S. 26 » The C P Laws Act, 1875, S. 5;
ihe Oudh Laws Act, 1878, S. 3

(g) Sabir Hussain v. Farzand Hasan, 42 Cal. W N 353, AIR 1938
PC 18 approving Zohoroodeen v. Baharoollah (1864) WR, 185.

CHAPTER II.

THE SOURCES OF HINDU LAW.

§ 12. The sources of Hindu Law are (1) the Smritis
or the Dharmasastras (2) the Commentaries and the Digests
and (3) Custom. The enactments of the legislature declaring
or altering rules of Hindu Law have now becom^ an addi-
tional source. Where the Smritis and the Commentaries are
silent or obscure, the principles of justice, equity and good
conscience are now, as in ancient Hindu Law. available within
limits to supplement the rules of Hindu Law. Decisions of
courts have sometimes been referred to as an additional
source but, strictly speaking, courts do not make laws but
only ascertain them (a) .

The Sruti (that which has been heard) is in theory the
primary and paramount source of Hindu Law and is supposed
to be the language of divine Revelation (a^). By the term
Sruti^ the four Vedas namely the Rik, the Yajus, the Saman
and the Atharva, along with their respective Brahmanas are
meant (fe). The Sruti, however, has little or no legal value.
It contains no statements of law, as such, though its statements
of facts are occasionally referred to in the Smritis and the
Commentaries as evidence of legal usage. The Vedas contain
passages alluding to the Brahma, Asura and Gandharva forms
of marriage, to the necessity for a son, to the Kshetraja, the
Dattaka, and the son of the appointed daughter, to partition
amongst sons and to exclusion of women from inheritance (c).
The sources of Dharma as mentioned by Manu and Yajna-
valkya are not the sources of Vyavahara law alone but the
sources of Dharma in the wider sense. But as far as Vyavahara
or Hindu Civil law is concerned, the Smritis of Narada and
Brihaspati, as explained in the last chapter, have stated its
sources as Smritis, Custom, King’s ordinances and equity and
reason.

Rules, as distinct from instances, of conduct are, for the
first time, embodied in the Smritis. The Smritis or tradi-
tion are of human origin and refer to what is supposed to

(a) Per Coutts Trotter J., in Pudiava v. Pavanasa <1922 ) 45 Mad.,
949, 967, 968 F.B.

(flU Manu II, 12; Yajn. I, 7.

ib) Medhatithi on Manu II, 6 cited in Jha. (H.L.S.) I, 22.

(c) Kane, 4 to 7.

Sources of
Hindu Law.

Sruti.

Smritis.

20

SOURCES OF HINDU LAW.

[chap. II.

Pur anas.

List of
lawgivers.

have been remembered by the sages who weie the repositories
of the Revelation. They are the Dharmasastras (d). The
Itihasas and Puranas are sometimes included in the term
‘Smriti’ in it*^ most comprehensive sense and “are reckoned
as a supplement to the Scripture, and as such, constitute a
fifth Veda (e)”. They are mentioned in the Chandogya
Upanishad, the Brihadaranyaka Upanishad and the Gautama
Dharmasutra. They have been referred to in the decisions
of courts and occasionally in some of the Commentaries and
Digests While the Puranas may perhaps be received in

illustration of the rules contained in the Smritis, they have
little \alue in the ^domain of civil law {(}. Mitraniisra, in
his commentary on the Yajnavalkya Smriti says that the
Puranas are not authoritative on law (g).

§ Id. The Smriti of Yajnavalkva gives a list of twenty
sages as lawgivers ^‘Manu, Atri, Vishnu, Harita, Yajna-
valkya, Usanas, Angiras, Yama, Apastamba, Samvarta,
Katyayana, Brih^ispati, Paiasara, Vyasa, Sankha, Likhita,
Daksha, Gautama, Satatapa and Vasishtha, these are the
propounders of the Dharmasastras” (/i) . The Mitakshara
explains that the enumeration is only illustrative and that
the Dharmasutras of Baudhayana and others are not
excluded ii) Little is known of the authors and it is
impossible to ascertain when they lived. Many of the names
are probablv mythical

(^f) Vibvarupa and Vijnanesvara on Yajn. I, 7, say that Smritis
and Dharmasastras are synonymous See also Balusus case (1899)
26 I A , 113, 131, 22 Mad , 398, 411. The Smritis have authority as
based on the Veda either because the persons ace the same that
performed the actions laid down in the Veda or are the same that
learnt and studied the Veda, Jha’s Mimamsa Sutras, Part I, 56-57.

(e) Per Mahmx)od, J, in Ganga Sahai v. Lekraj Singh (1887),
9 All, 253, 389 Jha (ILLS) I, 29

(el) The Kamayaiia is referred to in Muttuvaduga v. Doraisinga
(1878) 3 Mad ,^309, 326

(jf) The relevant verse in the Yajnavalkya Smriti on the sources
of law fs I. 7 and not I 3 and while the former, which follows Manu
II. 12, excludes the Puranas, the latter refers to them not as Dharma-
sastras but as one of the fourteen sources of knowledge and Dharma.
The Puranas on their own showing, give an account of the creation
of the universe, of dynasties, of gods, sages and kings, especially of
the two great dynasties and contain mythological and didactic stories.

(g) Yajn. Smnti with Viramitrodayatika, (Gharpure’s trans.) 29;
Sarkar, H.L. 7th Edn. 22, and Prof. Wilson think that while they are
not authoritative, they ran be received in explanation or illustration.
(A) Yajn. Smriti I, 4, 5; Vidyarnava’s trans. p. 10.

(i) Mit Vidyarnava's trans p. 10 For a complete list, see
Preface to Digest, xiii, W & B 13-32, 1 Morley’s Digest 196, Stokes,
HLB 5, Mandlik, xiv, Kane, HDS, passim, see also the list given
in the Viramitrodayatika, 22-23 (Gharpure’s trans.) ; also the lists
in Jha, ILLS. I, 30-32.

PARAS. 13 & 14.]

DHARMASIJTRAS.

21

The greatest difficulty that meets one at the threshold of Uncertain
our enquiry is the want of a reliable chronology; even the
ascertainment of sequences of these works is often equally
difficult. Another problem which confronts us is the
existence of conflicting rules in the different Smritis and
even in the same Smriti itself. Maxims, which have long
since ceased to correspond with actual life, are reproduced,
either without comment or with a non-natural interpretation.

Extinct usages are detailed, without a suggestion that they
are extinct, from an idea that it is sacrilegious to omit
anything that has once found a place in the Holy Writ. The
most probable explanation of the apparent divergencies
between the Smritis appears to be that they were not
from the beginning, of universal application throughout
Hindu India but, with the exception of the Manusmriti, were
much circumscribed in their local application or expressed
the views of the particular school to which they belonged.

Another inference, is reasonably plain that while some Smritis
modified their rules to provide for later usages and altered
conditions, other Smritis repeated the previous rules which
had become obsolete, side by side with the later rules.

§ 14. The Brahmins whose duty it was to study and Dharmasutras.
recite the Vedas became divided into various sakhas or
branches. Owing to the adoption of different readings and
interpretations, sects or schools for the different recensions
of the same Veda were formed, headed by distinguished
teachers who taught from such recensions (/). To facilitate
their teaching, they formed sutras or strings of aphorisms,
chiefly in prose which formed rather a memoria technica by
which the substance of the oral lessons might be recalled,
than a regular treatise on the subject. Every department of
the Vedas had its own sutras. When sutras began to be
composed on matters of ritual, instruction on matters
connected with the daily life of the people dealing with
social, moral and legal precepts came to be included in
the sutras which served in some measure as rudimentary
texts of law. Sutras of this kind were distinguished as
Dharmasutras from those dealing with the more formal and
domestic ritual, the Srautasutras and the GrihyasutraSy the
whole being regarded as one Kalpasutra (y^). Professor Max- Their age.
Muller and Professor Hopkins place the Sutra period roughly
as ranging from 600 to 200 B.C. (A). The Dharmasutras are

(/) See MaxMuller’s letter to Morley, 1 M. Dig., Introdn., 196.

(;l) Keith, H.S.L., 437.

ik) C.H.I. Vol. I, 249; A.S. Lit. 244.

22

SOURCES OF HINDU LAW.

[chap TI.

Gautama.

Commentator

Haradatta.

Baudhayana.

geneiallv works, untten in teise prose or in mixed prose and
verse; the other Dhatmasastras are the metrical Smritis.
Professor MaxMuller and Dr. Buhler consider that the
Dharmasastras which are wholly in verse to be metrical
versions of pre-existing Dharmasutras, a view which cannot
be said to be established (/). The Dharmasutras of Gautama,
Baudhayana. Apastamba and Vasishtha (rn) are considered
by Dr. Buhler, Dr. Jolly and Mr. Kane to be the most
ancient of the lawbooks These three scholars, on a con-
sideration ot the internal evidence, follow the general Indian
tiadition a^id place them in the order named (n). Of course,
the reference in all these <‘ases is to the books in their extant
form, foi, as Mr Kane points out, woiks on Dharmasastras
existed even befoie the pciiod 600—300 B.C (o)

Gautama is the most ancient, being quoted by Baudhayana.
He belonged to the Saniaveda He declares that, in partition,
there is an increase of spiritual meiit, that sapindas and
sagotras, including those descended from the same rishi, and
the wife shall shSre the estate of a person who dies without
male issue or an appointed daughter. According to him,
a woman’s stridhan property goes to her unmai ried daughters,
and in default, to unendowed married daughters, the son
of a Brahmana by a Kshatriya wife shares equally with his
younger biothei boin of a Brahmin wife, and the son by a
Sudra wife receives a provision for niaintenanc'c out of the
estate of a Brahmin who dies without other male issue.
Haradatta (c 12th centuiy AD.) wrote a commentary called
the Mitakshara on the Gautama Dharmasutra. His views
on the piohibited degiees of marriages are referred to by
later writers {p) •

Baudhavana belonged to the Black Yajurveda and was
probably an inhabitant of the eastein coast in the Andhra
country (q). He refeis to the twelve kinds of sons including
the Kshetiaja^ whom he declaics to belong to both the

(/) Mr kdiu* di'^hents from this view, 10, 80-85

im) All the&e have been translated by Dr Buhler S B.E series,
Vols. II & XI\

(/i) While Dr Buhler, Dr Jolly and Prof. Macdonell consider
the Dharmasutras of Gautama and Baudhayana to be of higher
antiquity than the Apastamba-Dharmasutra, Dr. Jayaswal places them
between 350 B C and 200 B.C , Jayaswal, M & Y, 4.

(o) Kane, 9

(p) Kane, 347, 351, 352 Kamalakara in the Nirnaya Sindhu and
by Balambhatta

iq) Dr Buhler, S B.E , Vol. XIV, Introdn XLIII.

PARA. 14.]

DHARMASUTRAS.

23

families with a right to give funeral oblations and to inherit
the properties of both the fathers. He divides the twelve
sons into two classes, one being entitled to share the
inheritance and the other to be members of the family only.

Apastamba, like Baudhayana, belonged to the Black- Apastamba.
Yajurveda and was also probably a native of the Andhra
country (r). He refers to Svetaketu who appeals as a Vedic
teacher even in the Satapatha Brahmana and in the
Chandogya Upanishad, as an avara or a man of recent
times (.s). On this and other evidence, Dr. Buhler, Dr. Jolly
and Mr. Kane assign the Apastamba Dharmasutra to the
fourth or the fifth century B.C. (0- Professor Hopkins and
Dr. Keith suggest the second century B.C. as the more pro-
bable dale(tt). Dr. Jayaswal agrees with Dr. Jolly and
assigns the work to the fifth century B.C. (v) . Apastamba
IS remarkable for the uncompromising vigour with which he
rejects certain practices recognised by the early Hindu Law
such as the Niydga, He recognises only six marriage rites
and omits the Paisacha and the Prajapat^ia. He does not
recognise the secondary sons, not even the adopted son. He
prohibits the gift or sale of a child. He recognises the
nearest sapindas, the spiritual preceptor, the pupil and lastly
the daughter as heirs. Haradatta (c. 12th Century A.D.)
has written a commentary called the Ujjvala on the Dharma-
sutra of Apastamba (w).

Dr. Jolly thinks that the Vasishtha Dharmasutra should be Vasishtha.
placed several centuries before Christ as it was connected
with the Rigveda and belonged to Northern India (%).

Mr. Kane says that the work must be much earlier than the
beginning of Ihe Christian era and that the earliest date
may be 300 B.C. (y). Vasishtha says that the customs of
the country of the Aryavarta must be everywhere acknow^-
ledged as authoritative (I-IO) ; he does not allow a Dvija
to take a Sudra wife, recognises only six marriage rites and
omits all mention of the Paisacha and the Prajapatya rites.

The Rakshasa and the Asura marriages in the other* Smritis
are referred to by him as Kshatra and Manusha rites

(r) S B.E , Vol II, Introdn. 33, 34, Jolly, L & C, 6.

( 5 ) Jolly, L & C, 5.

(/) S.B.E., Vol. II, Introdn. 46; Jolly, L & C, 5. Kane, 45.
(tt) C.H.I. I, 250; Keith, H.S.L., 438.

(r) Jayaswal, M & Y, 3, 53, 54.

(w) Kane, 45, 347.

(x) Jolly, L & C, 13.

(y) Kane, 59.

24

SOURCES OF HINDU LAW.

[chap. II.

Vishnu

indicating that the former was common among the Kshatriyas
and the latter among the Vaisyas and Sudras. He permits
the remarriage of virgin widows (XVII, 74). The rate of
interest prescribed by him, that is, fifteen per cent, per annum,
known as the Vasishtha rate of interest is famous in the
Smritis and is noticed by Manu (y^). He states how a legal
panshad or assembly of ten should be constituted for settling
disputes (HI, 20). As to inheritance, he merely says that
sapindas are to inherit and in default, the spiritual teacher
and the pupil. He is eloquent on the need for gifts,
especially* when the gift is of learning (Ch XXIX). He
recognises the twelve sons and classifies six of them as heirs
and kinsmen and declares that the others are only kinsmen
but not heirs. By his time, the dattaka son had become very
important. Differing from Apastamba, Vasishtha says that
the father and the mother have power to give or sell their
son and even to abandon him.

The Dharmasastra which bears the name of Vishnu or the
Vishnusmriti, partly m aphoristic style and partly in verse,
ranks with the other ancient Dharmasutras and appears to be
closely connected with the Manusmriti and next to it with
the Yajnavalkya smriti (z) . The existing recension of the
Vishnusmriti cannot, according to Dr. Jolly, be assigned to a
period earlier than the third century A.D. But he considers
that portions of the work, both in style and structure, bear
the mark of extreme antiquity and that Vasishtha and
Baudhayana probably borrow from it (a). The Vishnusmriti
is referred to as one of the authoritative Smritis by
Yajnavalkya (6) and cannot be later than the Yajnavalkya-
smriti, the date of which is shown to be not ^ater than first
or second century A D. Vishnu, differing from Manu, draws a
distinction between the self-acquired property of the father
and the property of the paternal grandfather and, like
Yajnavalkya, declares the equal right of the father and the
son in property inherited from the paternal grandfather (c)
and provides for reunion. He gives the eighth rank to the
adopted son. He recognises the son begotten on a widow or
a wife by a near relation and appears to place him even

(yi) Vas II, 51; Manu VIII, 140.

(z) Jolly, L & C, 15, S.B.E., Vol. VII, 22, 25, Mr. Kane points
out that 160 verses of the Manusmriti are found m this (Kane, 63)

(a) SB.E, Vol VII, Inirodn, 18, 19, 22, 32.
ib) Yajn. I, 4.

(c) Vishnu, XVII, 2.

PARAS. 14 & 15.]

THE CODE OF MANU.

2S

before ihe son of the appointed daughter. He recognises the wife,
the daughter, her son, the father, the mother and the brother
as the heirs in order, to a man who dies without male issue.

He denounces atheism and the study of irreligious books. He
deals with crimes, punishments and ordeals at some length.

He devotes far more attention to the religious law than to
the civil law.

Haritasmriti is stated by Dr. Jolly to be an extensive Harita.
work. The Dharmasastras of Baudhayana and Vasishtha
quote him as an authority and Apastamba quotes him more
frequently than any other author (d) but the quotations from
Harita by Apastamba and Baudhayana are not to be found
in the copy of the manuscript discovered dt Nasik (c). For
the present, we must be content with the quotations from the
Haritasmriti available in the other Smritis or in the Digests
and the Commentaries. Like Vasishtha, he refers to the
Kshatra and the Manusha marriages. Harita speaks of two
classes of women Srahmavadinis and Sadyovadhus and states
that the former were entitled to have the ^^panayanam per-
formed, to keep the sacred fire and to study the Vedas (/).

Harita, Hiranyakesin, Usanas, Kasyapa, Sankha, Likhita and
Paithinasi, all of whom are quoted in Jagannatha’s Digest
and by the commentators, are also of the Sutra period. Of
these, Harita is earlier than Baudhayana and Hiranyakesin is
later than Apastamba (g) .

§ 15. The Code of Manu {h) has always been treated Manu.
by Hindu sages and commentators, from the earliest times,
as of paramount authority (i). The personality of Manu,
the ancestor of mankind, is, of course, mythical. In the Veda
itself, the pre-eihinence of Manu is declared; ‘whatever Manu
says is medicine’ (y). The paramount authority of the

id) Kane, 70; Jolly, L & C, 15-18.

(e) Jolly, L & C, 15.

(/) Kane, 73.

(g) S B E. Vol. II, Buhler’s Introdn. 24. 25, 28.

(h) This has been translated by Dr. Buhler S.B.E., Vol. XXV;
also by Sir William Jones, Dr. Jha has translated it together with
Medhatithi’s commentary. Mandlik has published the Sanskrit text
with the commentaries of Medhatithi, Kulluka and four others.

(i) “The most revered of all the Rishis or sages is M*anu” per
Lord Hobhouse in Sri Balusu's case (1899) 26, LA., 113, 129; 22 Mad.
398, 409; “Manu’s Code has always been regarded as of paramount
authority.” Amarendra*s case (1933) 60 I.A., 242, 248, 12 Pat., 642.
Manu may properly be referred to when it is necessary to resort to
first principles. Ramalakshmi v. Sivanantha (1872) 14 M.I.A. 570.
591.

(/) Kane. 136-137.

26

SOURCES OF HINDU LAW.

[chap. It.

Manusmnti is proclaimed by the sages, Brihaspati and
Angirasa and they declare that where there is a conflict
between the code of Manu and another smriti, the former
IS to be accepted {k). The Institutes of Manu are supposed
to be recited by Bhrigu at Manu’s command (/) In the
Narada Smriti, Sumati, son of Bhiigu is said to have abridged
a much longer woik (/'). Not only has Manu been revered
by Hindu lawyeis from very early times but he is referred to
as of supreme weight by even Buddhist writers of Java, Siam
and Burma {in). The age of the work in its present form
IS placed* by Professor Monier Williams at about the sixth
century BC. (n) Professor MaxMuller would appaiently
place It at a date not earlier than 200 BC (o). The present
Smriti purports, on its face, to be an abiidgment (o^) Further,
we also find a Vriddha or old Manu as well as a Bnhat or
large Manu The terms Bnhat and Vriddha have been
shown by Mi Mandlik to be conveitible terms and Dr. Buhler
and Mr. Mandlik weie of opinion that^ when the words
Vriddha or Bnhat are prefixed to works, they were by differ-
ent authors ( />) Di Buhler, after many fluctuations of

(/c) Smrilichandrilva and Viramitrodaya cited in Jlia, H L S. I,
17, 43, 44

(/) Manu, I, 59, 60, 119, VIII, 204, XII, 2

(/I) ^BE Vol XXXllI, 2, 3, also Dr Buhler’s Introdn to Manu,
bBE Vol X\\, p 95

{m) Jolly, L & C, 29, 89 to 94 The earliest law book in Burma,
the Dhamniathat compiled under the oiders of Wareru (1287-1296
AD) owed Its origin to the code of Manu which was taken by the
Hindu colonists who went to Burma about the 3rd century A.D
<CHT, Vol III, 551), Also Jha, HLS, I, 18

in) Monier Williams “Indian Wisdom*’ 215

(o) ASL, 61 and 214 One of his reasons for the view, ze, that
the continuous slokas in which it is written did not come into use
until after that <lalc has Intn shown not to be beyond doubt as
Professor Goldstucker has established their existence at an earlier
period. West and Buhler, 39

(o^) Medhalithi (c 825 AD) commenting on Manu V, 13, lefers
to the “Manu Smriti “as the work of a human author having been
composed by him with great care and labour for the purpose of
supplying in brief all the information contained in another voluminous
work containing a hundred thousand verses” (Vol. Ill, i, p 19) See
also Medhatithi on Manu I, 58

(n) Dr Buhler, SBE, Vol. XXV, Introdn 96-97 Mandlik,
Introdn , 23 24 Mandlik says that their being named after the same
author is due to the one being an expansion or an epitome of the
other The Viramitrodaya, however, following Sulapani says that
“Vriddha Manu, Vriddha Vasishtha, Vriddha Satatapa, Laghu Harita,
Yogi Yajnavalkya and the like, being the same Manu and the rest
who got special names indicative of the different periods of life, have
not been separately mentioned in the list.” (Mandlik, Introdn., 24).
This IS obviously fanciful.

PARA. 15.]

THE CODE OF MANU.

27

opinion, disagreeing with Professor MaxMuller, concludes
that the present Bhrigusamhita is the first and most ancient
recast of a Dharmasastra attributed to Manu, which, however
he thinks must be identified with a hypothetical Manava-
dharma-sutra (q) and that the Bhrigu Samhita such as we
know it, certainly existed in the second century A.D. and Its date,
seems to have been composed between that date and the
second century B.C. Both Dr. Jayaswal and Mr. Kane, the
latter on a categorical review of the entire evidence, are
clearly of opinion that there was no such work as Manava
Dharma Sutra (r). Professor Hopkins considers that the
Manu Smriti in its present form, is earlier than any other
Dharmasastra and the date now currently assumed is too
late and that the Manava Code belongs rather to the time
of our era or before it, than later (s) . Dr. Jayaswal suggests,
without plausibility, that the extant Manu Smriti came into
existence under the rule of the Sungas (184 B.C. to 72 B.C.)
when there was the revival of Brahminism and he places it
about ISO B.C. for all practical purposes (/)§ But Dr. Keith
points out that the Smriti is an early attempt at composition,
whence its defects, while the larger texts were writings up of
a popular original, that the Brahminical revival ol the first
or the second century B.C. was not of sufficient duration and
that the latei Brahminical revival under the Gupta Empire of
.the fourth century is rather late for the composition of this
work (a). These decisive factors, coupled with its agree-
ment in many matters with the Arthasastra of Kautilya and
its paramount authority, indicate that the Manu Smriti as a
whole, apart from verses here and there, must in all proba-
bility, be at least as early as second century B.C. Mr. Kane
thinks it could not be much earlier than the third century
B.C. (v). He also states that numerous verses are common
to the Dharmasutras of Vasishtha and Vishnu and the
Maniismriti and that Kautilya’s Arthasastra also exhibits
remarkable agreement with the Manusmriti in phraseology
and doctrines (w). The Code of Manu declares the eighteen

(q) S.B.E., Vol. XXV, Buhler’s Iiitrodn, passim.

(/■) Jayaswal, M & Y, 48; Kane, 79-85; Keith (H.S.L., 441) points
out that no strict proof of Dr. Buhler’s theory is possible.

(s) C.H.I., I, 279

(t) Jayaswal, M & Y, 26, 50.

(a) Keith, H.S.L., 441, 442.

(v) Kane, 151. The reference to Sakas and Pahlavas in Manu
X, 44 does not appear to be conclusive as more than one explanation
is possible.

(tv) Kane, 140.

28

SOURCES OF HINDU LAW.

[chap. IL

Yajnavalkya

heads of legal proceedings which were followed by Yajna-
valkya, Narada and Bnhaspati (a;). These divisions and
their order make no pretensions to a scientific system; they
were probably due to the practical needs of society and testify
to the greater frequency and intricacy of some kinds of
disputes than of others

§ 16. Next to Manu in authority is Yajnavalkya. No
Sutras corresponding to it have been discovered and the work
is considered by Professor Stenzler to have been founded
on that uf Manu. It has been the subject of numerous
commentaries, the most celebrated of which is the Mitakshara
and is practically the starting point of Hindu Law for those
provinces which are governed by the latter. Yajnavalkya
belonged to the White Yajurveda and is intimately connected
with the Brihadaranyaka Upanishad and his home is stated in
the Smriti itself as Mithila (North Bihar). According to
the Mitakshara, some pupil of Yajnavalkya abridged and
recited the Institutes of Yajnavalkya (y ) . Professor Wilson
points out that ‘‘passages taken from it have been found on
inscriptions in every part of India, dated in the 10th and 11th
centuries. To have been so widely diffused and to have them
attained a general character as an authority, a considerable
time must have elapsed, and the work must date therefore
long prior to those inscriptions.” ) . Dr Jolly and Dr. Keith
consider that his date may be approximately about 300 A.D.
(z). This is based partly on the view that the Smriti shows
an acquaintance with the planets and therefore Greek
astronomy and on the fact that it mentions a com Nanaka,
which is said to be Nana or Naneya, the coins of Kanishka.
It is now almost certain that the Kushana Emperor Kanishka’s
reign began in A.D. 78(a). This would not justify the
ascription of the Smriti to the third or fourth century A.D.
but only to the 1st or 2nd century A.D. Nor is it by any
means decisive Dr Jayaswal points out that the reference

(x) The Arthasastra of Kautilya does not refer to the 18 titles as
such but deals with them as well as others of public or administrative
law m a different order. For the eighteen titles, see ante § 9.

iy) Dr. Buhler, m accordance with his hypothesis which is no
longer accepted, conjectures that the Yajnavalkya Smnti may have
been based on Sutras of the school which followed the Vedic author
or even of that author himself. A. S. Lit, 329, W & B, 43 As in
the case of Manu, a Vriddha and a Brihat Yajnavalkya are spoken
of, evidencing possibly the existence of enlarged editions of the same
work.

(yi) Wilson’s Works III, 87, 90, IV, 89. A SL, 330.

(z) Jolly, L & C, 43, 44, Keith, 446, Hopkins C H.I., I, 279.

(a) CH.I, I, 582-3. Dr. Jayaswal’s article in 17 C W N., cclix.

PARA. 16.]

THE YAJNAVALKYA SMRITI.

29

by Yajnavalkya to the grahas or planets is of no significance.

He cites the opinion of Dr. Buhler that it is not proved
that a work having reference to Greek astronomy must be
dated the fourth century A.D. ‘The publication of fresh
Babylonian tablets has destroyed the old argument that
Ptolemy was the founder of the so called Greek astro-
logy (sic)’ (6). What is more, the Baudhayana Dharma-
sutra not only knows the grahas or planets but places
them in the same order as Yajnavalkya with the same
addition of Rahu and Ketu (c) ; and the Baudhayana
Smriti must admittedly be ascribed to some centuries
before Christ. The reference to Ganesa or Ganapati worship
does not warrant any later date for the Hf^ajnavalkya Smriti
as Baudhayana also knows the Ganesa worship (d).

Dr. Jayaswal, however, places the Yajnavalkya Smriti, with
reference to the coin Nanaka, at about 150 to 200 A.D. fc).

In Ramachandi a^ s case, Mr. Ameer Ali refers to Yajnavalkya
as belonging to •2nd Century A.D. (c’). Passages from
Yajnavalkya are found in the PanchatantriA (c. 3rd century
A.D.). It seems therefore fairly certain that the work is
nearly two thousand years old, though an exact date is
impossible. Mr. Mandlik does not consider that Yajnavalkya age-
had any importance outside his own sakha and attributes its
present position to the publication of the Mitakshara in 1813
and to Mr. Colebrooke’s translation of the Dayabhaga portion
of it as an official publication (/). It must have been selected
by Mr. Colebrooke because of its great importance. That from
early times, commentators from all parts of India such as
Visvarupa, Vijnanesvara, Apararka, Sulapani and Mitramisra,
not to speak of^other commentators, selected the Yajnavalkya
Smriti as the basis of their commentaries, that passages from
the Smriti appeared in the Panchatantra and in the inscriptions
of the 10th and 11th centuries A.D. and were incorporated

•

(6) Jayaswal, M & Y, 59, 61. The opinion of Dr. Jacobi, a^'cord-
ing to the note of the translator of Dr. Jolly is controverted By Losch
on the ground that the Babylonian heptagram might have been
directly derived from Babylon and not through the Greeks and
this is rendered easily the more probable by the recent discoveries
in the Indus Valley. Jolly’s L & C, 43, Note 3 of translator.

(c) Baudh. II, 5, 9, 9.

id) Baudh. II, 5, 9, 7.

(e) Jayaswal, M & Y, 59-61; Mr. Kane places the Yajnavalkya
Smriti between the 1st century B.C. and 3rd century A.D. (Kane, 184).
Dr. Jayaswal is of opinion that the Yajnavalkya Smriti is based upon
Manu, Vishnu, and the Arthasastra, 59.

(cl) (1914) 41 I.A., 290, 299 ; 42 Cal., 384, 406.

(/) Mandlik, Introdn., 49.

30

SOURCES OF HINDU LAW.

[chap. IL

Narada

wholesale in the Agnipurana which is earliei than the 10th
century A.D as well as the unusual importance of the
Mitakshara from the eleventh century onwards — these appear
to be a sufficient refutation of Mr Mandlik's views. The
Yajnavalkvasmriti is concise, more systematic and better
arranged than the Manusmnti and the correspondence of
Yajnavalkya’s words with the text of Manu is in most cases
very close (g).

§ 17 The last of the complete metrical Dharmasastras
which we possess is the Naradasmriti (// 1 . The work, as usual,
IS ascribed to the divine sage Narada and purports to have
been abstracted by* him from the second abridgment of Manu
in 4,000 verses Yajnavalkya does not mention Narada as the
author of a Smriti but Visvarupa commenting on Yajnavalkya
cites a verse of Vriddha Yajnavalkya which refers
to Narada, Baudhayana and Saunaka (AM. Narada
seems to have been a native of Nepal- ( i ) and is ‘the
first to give us , a legal code unhampered by the mass of
religious and moral teaching, characteristic of the earlier
Dharmasastras’ According to Narada, laws were proclaimed
by Kings and royal ordinances could overrule the bmriti law.
It IS remarkable for its rules of procedure and pleading and
it fixes the age of discretion or majority. His work is based
essentially upon Manu and Yajnavalkya though he differs in
many respects from Manu. His age is so much earlier than
that of Medhalithi (ninth century A D ) and Vijnanesvara,
the author of the Mitakshara (eleventh century A D ) that he
IS not only quoted throughout their works but quoted as one
of the inspired writers Dr. Jolly would place him in the 4th
or 5th century A D , as the term dinara, mentioned by Narada,
could not have come into existence before the 2nd century
A.D. (j) Mr. Kane, however, cites Dr. Keith to the effect that
the introduction of the dinaras into India need not be later
than the beginning of the Christian era and that the Indo-
Scythian coins, equal in weight to the dinara^ were prevalent
from the 1st century B.C. and places Narada between 100 to
300 A.D. {k ) . This view receives support from Dr. Jolly’s
statement, in his introduction to Brihaspati, that the 1st
century A.D. is the period to which belongs the earliest Indian

ig) Kane, 172, 176

ih) Dr. Jolly has translated it, SEE., Vol. XXXIII.

{h^) Visvarupa (Tnv ed.), p. 10.

(t) CHI, I, 280, Jolly L & C, 49, Vol. XXXIII, Introdn.

(;) Jolly’s Introdn., S.B E., XXXIII, p. xviii; Jolly L & C, 48.
ik) Kan-, 203 205.

PARA. 17.]

NARADA AND BRIHASPATI.

31

gold coins, corresponding in weight to the denarius of the
Romans (Z). There would therefore appear to be no necessity
to refer Narada or Brihaspati to the 5th century A.D.
Probably they belonged to the 4th century, the golden age of
Classical Sanskrit under the earlier Gupta Emperors, when
there was a distinct revival of Brahminism and a reassertion
of Indian nationality {m) . Narada allows remarriage of
widows and declaies the father’s absolute right to distribute
the property among his sons as he pleases. He does not appear
to recognise the widow as an heir in any case. He filaces the
adopted son as the ninth in rank and excludes him from the
list of collateral heirs. These differmices are, in all
probability, attributable to the customs of the part of India
with which he was more familiar.

Asahaya has written a commentary upon this Smriti, of
which a fragment alone is available in). He appears to have
been one of the mAst ancient commentators and lived not later
than the 8th and not earlier than the 6th century A.D. (o) . On
the question whether the great-grandson is liable for his
ancestor’s debts, he holds that he is, and gives a report of
the case of Sridhara v. Mahidhara, an ancient action decided
at Pataliputra, in his comment on Narada I, 6 ip).

The rules of Civil Law propounded by Brihaspati, though
the complete Smriti has not been recovered, are available in
fragments. They are described by Dr. Jolly as among the
most precious relics of the early legal literature of India.
The close connection between Manu and Brihaspati Is evident.
Brihaspati, like Narada, allows gambling in public places.
Differing from* Yajnavalkya, he agrees with Manu in
condemning the practice of Niyoga and refusing to recognise
the Kshetraja and other sons {q). He declares that only the
aurasa son and the son of the appointed daughter shall be

(/) Jolly’s Introdn, SBE, Vol. XXXIII, 275.
im) Keith, H.S.L., 74, 75

(n) Kane, 247.

(o) Jolly, L & C, 48, Kane, 250.

(p) For Asahaya’s report of the case, see Ghose, Vol. II, 36-37.
Jolly’s note in S.B.E , Vol. XXXIII, page 43; see, Jayaswal, M & Y,
195-196. Both Balambhatta and Dr. Sarvadhikari made a mistake by
treating the term ‘asahaya’ in Mit. I, vii, 13 as an adjective meaning
‘peerless’ or ‘incomparable’ and applied it to Medhatithi; Sarvadhikari,
2nd edn., 249-250, Visvariipa, the Vivada Ratnakara and the Sarasvati
Vilasa read it accurately as referring to Asahaya. Jolly, T.L.L., 4-5;
Colebrooke’s note on Mit. I, vii, 13; Kane, 250; Ganapathi Iyer-
206.207.

ig) Brih. XXIV, 12, 14.

Asahaya on^.
Narada.

Brihaspati.

-32

SOURCES OF HINDU LAW.

[chap. II.

Katyayana.

heirs to the father’s wealth and that all the others have only
a claim to maintenance (r). Bnh-ispati follows Yajnavalkya
in declaring the equal rights of the father and the son in
ancestral property. He holds enlightened views on the subject
of women’s rights and declares the rights of the widow, the
daughter and the mother as heirs (s) and provides for reunion
of separated co-parceners. Many of his rules are even more
rational and advanced than those to be found in Narada.
Brihaspati was probably the first jurist to make a clear

distinction between Civil and Criminal justice. Of the

eighteen titles of law, he distinguishes fourteen titles

as cases of property and the other four as cases
of wrong (/) . He gives, like Narada, detailed rules

of procedure and pleading. Though Narada and

Brihaspati agree very closely on many matters,

Brihaspati follows Manu still more closely. Mr. Kane thinks
that Brihaspati is not later than Narada and places him
between 200-400 A.D (n). He was considered an inspired
writer by verv eaily commentators like Medhatithi and it
appears that the coincidences between Brihaspati and the
Burmese Dhammalhats are numerous and striking (i).
Brihaspati, unlike Narada, is one of the writers referred to by
Yajnavalkya.

Katyayana is a Smriti writer mentioned by Yajnavalkya.
The Smnti, however, has not yet been recovered wholly and
only quotations from Katyayana contained in a dozen works
from Visvarupa to Mitramisra are available (w) , Katyayana
appears to follow Narada and Brihaspati, both in the order
and treatment of subjects and in the spirit in which he
approaches Vyavahara or Civil Law. The special feature of
Katyayana is his treatment of stridhana. He defines the
several kinds of stridhana and declares the women’s power
of disposal over them and prescribes the lines of devolution
in respect of them. It appears that the Smriti Chandrika alone
cites about 600 verses of Katyayana, out of an approximate
total of 900 verses of his on Vyavahara, found scattered
through the several treatises. As Visvarupa and Medhatithi
regarded Katyayana as having equal authority with Narada

(r) Bnh. XXV, 35, 39, 40.

(5) Bnh. XXV, 49, 55, 63.

(t) Bnh. II, 5 to 9. Kane, 208, C H.1 , 1, 281.

(u) Kane, 210; Dr. Jolly’s date of 6th or 7th century is too late
for the treatment accorded to Brihaspati by Visvarupa and Medhatithi.

(v) Jolly, Introdn , S B.E , Vol XXXIII, 276.
iw) Katie, 213, 214.

PARAS. 18 & 19.] FRAGMENTARY DHARMASASTRAS.

33

and Brihaspati, they may all be regarded as belonging more
or less to the same period (jc) .

§ 18. Fragments of other Dharmasastras, either in sutra
or in metrical form which are now lost, are to be found
scattered in the Commentaries and Digests. The Smritis of
Angiras, Atri, Daksha, Devala, Laugakshi, Prajapati, Pita-
maha, Pulastya, Yama, Vyasa, Samvarta and Satatapa come
-under this head. That they are really extracts from, or modern
versions of, more extensive treatises and not forgeries, as has
Tjeen supposed, seems to follow from the fact that some of the
verses quoted by the older commentators, such as Vijnanesvara
and Apararka fiom the woiks of Angirps and olheis are
actually found in them. On the other hand, many verses
■quoted by the commentators are not traceable in them. Some
■of the names in the above list are actually enumerated by
Yajnavalkya as original sources of law. They must therefore
have existed, though not in their present shape, before his
time. Dr. Jolly treats it as certain that the most recent of the
metrical fragments must be older than ^he 9th century
A.D. when many of them are quoted by Medhatithi (y),

A work called the Smritisangraha or Sangraha, whose
4£iuthor is not known, is frequently cited in the Mitakshara,
the Smritichandrika, Apararka and other works. Mr. Kane
says that the quotations from it on Vyavaliara are copious.
The author of the Sangraha held that ownership arose from
the dictates of the Sastras and that property was not temporal.
According to it, partition only and not a right by birth, creates
•ownership in the son as regards paternal wealth. It gives the
order of succession as widow, the daughter, who is a putrika,
mother, paternal grandmother, father, full brothers, half-
brothers, then the lines of the father, grandfather and great-
grandfather, other sapindas, sakulyas, the preceptor, pupil
and a fellow-student. Mr. Kane thinks that the Smritisangraha
was compiled between the 8th and the 10th centuries
A.D. ( 2 ).

§ 19. In interpreting and applying the rules contained
in the Smritis and the Commentaries and treatises founded
upon them, the principal question is whether a particular rule
is a rule of positive law or a religious or a moral precept.
The necessity for caution on this point has been repeatedly

(x) Jayaswal, M & Y, 64; Kane, 218.

(y) Jolly, T.L.L., 68.

(z) Kane, 241.

Fragmentary

Dharmasastras*

The Smriti-
sangraha.

Legal rules
or moral
precepts?

3

SOURCES OF HINDU LAW.

[chap. II.

ei^iphasjsed by the Privy Council. “Their Lordships had
occasion in a late case (a) to dwell upon the mixture of
morality, religion and law in the Sniritis. They then said
^All these old text-books and commentai les are apt to
mingle religious and moral considerations, not being positive^
laws with rules intended for positive laws ’ They now add
that the furthci study of the subject necessary for the decision
of these appeals has still more impressed them with the^
necessity of great caution in intcrpieting books of mixed
religion, morality and law, lest foieign [and Indian] lawyers
accustomed to tieat as law what they find in authoritative
books, and to administer a fixed h’gal system, should too
hastily take for slrvct law precepts which aie meant to appeal
to the moral sense, and should thus fetter individual judgmenls
in private affairs, should introduce resti ic'lions into Hindu
society, and inipait to it an inflexible iigidity, novel contem-
plated bv the oiiginal lawgivers” ib).

On the olhei hand, it should lie remembeicd that the
Hindu Law c onla ns its own piinciplcs of exposition, and that
questions arising under it cannot be detei mined on abstiact
leasoning or analogies boi rowed fiom other systems of law^
but must depend for their decision on the rules and doctrines
enunciated by its own lawgivers and rec ognised expounders
(c). The conflict between one smriti and another simiti text
or the conflict between two texts in the same smiiti has oflen
occasioned difficulty. The possibility of such conflicts was
recognised in the smritis themselves. Of couise commentators
make every possible effoit to reconcile conflicting texts, it
being an established rule of constiuc tion that no conflic-t should
be admitted to exist where it is possible to find an interpreta-
tion which would avoid it. But where the conflict is clear^
they have made some provision as to how it should be
resolved One rule, which has not always been observed, is
that where the Code of Manu and other Smiilis conflict, Manu’s
view prevails gs against the other Smritis (c/). Another lule
is that wheie two conflicting texts provide two couises of

{a) Rao Balwant Singh v. Ram Kibhon (1898) 25 I.A , 51, 69,
20 All, 267.

{h) Sri Raliibii Giimhngaswami v Sn Balusu Ramalakshmaninia
(1899) 26 TA, 113, 136, 22 Mad, 398, 415, 416, B, G Tilak v.
Shnnivas Pandit (1915) 42 I A , 135, 149, 39 Bom, 441. The words
in square brackets are, the editor’s.

(c) Ramathandra Martand v. Vinayek V. Kothekar (1914) 41 1 A .
290, 299 ; 42 Cal, 384.

id) Sn Balusu' s case (1899) 26 I A., 113, 129, see the Smriti-
chandrika (Samskara, 16-17) and the Viramitrodaya cited in J|ia,
H.L.S., 1, 17, 43, 44 where the texts of Angirasa and Brihaspati are-
quoted. '

Principles
of exegesis.

PARAS. 19 & 20.]

RULES OF CONSTRUCTION.

as

action, either can be followed at one’s option (e). This can
apply only to achara and not to vyavahara or civil law. A
third rule is that where there is a conflict between two
smriti texts, preference is given to the text which is more
consonant with equity and reason as guided by the practices
of the old. This rule is expressly made applicable to
vyavahara by Yajnavalkya (/). Yet another method of
dealing with the texts is to declare that certain
rules in the Smritis have become obsolete. The dis-
continuance of particular usage's or the disapprobation
of them by the people at large given effect to by the
commentatois made many rules rightly obsolete (g). But as
held in Pudiava Nadar v. Pavanasa Nadar, this process is no
longer possible and a positive rule of law as contained in the
authoiilative commentaries can only be abrogated by evidence
of custom in derogation of it (h). In many cases, however,
the conflict between two texts in the same Smriti is moie
apparent than reak The Smritis, like the later commentaries,
sometimes state at first the opposite view, 'iien give reasons
against it and finally state their conclusions, as for instance,
in the case of the Kshetraja son, the additional share for the
eldest son, the marriage of a Brahmin w'ith a Sudra woman,
etc. The overlooking of this feature has been mainly
responsible for reading more conflicts into the Smritis than
arc really to be found. The commentators, however, bound as
they were by the orthodox rule to treat every text in the Smriti
as equally valid, were obliged to adopt a different process of
reconciliation by treating some as arthavada and others as
relating to different subjects and so on (i).

§ 20. The question has sometimes been debated whether Mimamsa.
the Mimamsa rules of interpretation which undoubtedly apply

(e) Manu, TI, 14 as interpreted by Medhalithi and Kulluka; Gant.
I, 4.

(/) Yajn, II, 21; Nar, I, 40, S.B.E,, Vol. XXXIII, 15; Sen,
14, 15; see also Jayaswal, M & Y, 80.

(g) Jolly, L & C, 96.

(h) (1922) 45 Mad., 949, 962 “A law does not cease to be
operative because it is out of keeping with the times. A law does not
become obsolete because it is an anachronism or because it is
antiquated or because the reason why it originally became the law
would be no reason for the introduction of such a law at the present
time.” Per Schwabe C. J.

(i) Jolly, T.L.L, 34; “Elsewhere than in India, too, it has been
found easier to explain an old law away than to abolish it, and tricks ‘
of interpretation analogous to those invented' by the Indian pandits
have betm resorted to by the jurists of several European countries.*’
See Jagdish v. Skeo Partab (1901) 28 I. A., JOO, 109 1 23 All., 369y'
381-2; and Rai Kesserbai v. Hunsraj (1906), 33 I.a!, 176, 196; 30
Bom., 431, 451, where similar ways of reconciliation were adonted.

36

SOURCES OF HINDU LAW.

[chap. 11.

to the exposition of the Vedas should be applied in the inter-
pretation of the Smriti texts as well. They are in theory
no doubt applicable and have in practice been so applied
by all the commentators (/). The Mimamsa of Jaimini
‘consists chiefly of a critical commentary on the Brahmana
or ritual portion of the Veda in its connection with the
Mantras’ Tt provides ‘a correct interpretation of the ritual
of the Veda and the solution of doubts and discrepancies in
regard to Vedic texts caused by the discordant explanations o^
opposite schools’ Its only claim to the title of a philosophy
consists in its mode of interpretation, the topics being arranged
according to particular categories (such as authorilativeness,
indirect precept, etc.), and treated according to a kind of
logical method commencing with the proposition to be
discussed, the Purvapaksha or priina facie and wrong view of
the question, the Utlarapaksha, a refutation of the wrong
view and the Siddhanta^ or conclusion ik) The Mimamsa
IS referred to as one of the fouiteen sources of knowledge by
Yajnavalkya (/) and one \eised in the Mimamsa must be a
member of the parishad of ten according to Manu, Baudha-
yana and Vasishtha (rn), Jaimini’s exact age is unknown but
he must admittedly be of the Sutra period (600 B.C.). Dr. Jha
Jaimini’s age. says that he must have lived long before the 5lh century B.C.

as his Sutras have been the subject of well known commentaries
from about the time of the Christian era (n) and Jaimini is
referred to in the Panchatantra as the author of the Mimamsa

(/) Jolly, L & C, 66

ik) Indian Wisdom, 108, Mimamsa means the investigation of
the meaning of the Veda. Ibid 214 note, Jaimmrs treatise is also
spoken of as the Purva or earlier Mimamsa in opposition to the
Uttara or later Mimamsa by Vyasa. K L Sarkar, Mimamsa, 268.
The Mimamsa Sutras are finally divided into adhikaranas or topics,
each taking up one doubtful point and by a series of reasonings
arriving at the right conclusion The five limbs of every adhikarana
are (1) a vnhaya-vakya (a vedic sentence) as to which there is
(2) samsaya (doubt as to its correct meaning) ; (3) purvapaksha

(a prima facie view put forward by the objector) , (4) uttarapaksha
(refutation of the prima facie view), and (5) siddhanta (conclusion).
Kisori Lai Sarkar, Mimamsa 62, Jha’s Mimamsa Sutras, Introdn

(/) Yajn, I, 3.

(m) Manii, XII, 111; Baudh , I, 1, 1, 8, Vas., Ill, 20. The duty
of the Parishad was to declare the law where no rule is given in
the Smritis and to decide doubtful points of law, Gaut. XXVIII, 48;
Manu XII, 108-112. Apastamba also refers to those learned in
Mimamsa (II, 4, 8, 13).

in) Jha, H.L.S., I, 9.

PARA. 20 .]

MIMAMSA.

37

(o). Though primarily intended for the exposition of the
Vedas, the Mimamsa rules of interpretation have been consi-
dered by later writers as authoritative in reconciling appar-
ently conflicting Smriti texts and in interpreting and giving
effect to them (p), for instance, by Vijnanesvara in the
Mitakshara (q) and by Medhatithi, Apararka, Jimutavahana,
Devannabhatta, Kulluka, and Nilakantha (r). Mr. Cole-
brooke says, ‘the logic of the Mimamsa is the logic of the law;
the rule of interpretation of civil and religious ordinances.’

(r^).

Mr. Kisori Lai Sarkar, in his woik on the subject is) has,
at gieat length, discussed the Mimamsa ‘rules. Some of the
rules are such as would be applied by any lawyer in the
construction of a statute or a document, for instance, an
apparent contradiction of texts is to be ascribed to their
applying to different subjects or by supposing that the one
contains a genenal rule and the other a special one. So also
the rule that words which have been defined in the Snniti!>
ought to be taken in that sense or the rule that the same word
or sentence should not be understood in two different senses
in the course of the same discussion {t) or the rule that the
singular includes the plural or the masimline includes the
feminine or the greater includes the less or the primary sense
of a word should be pieferred to its secondary sense — all these
arc intelligible enough. Equally, the maxim that a special
rule prevails over the general or the principle that where
there is an exception to a geiieial rule, the exception should

(«) K. L. Sarkar, Mimamsa, 510. In Beni Prasad v. Hardai Bibi
(1892) 14 All., 67, 73, Sir John Edge was wrongly informed by
Counsel that Jaimini lived in the 13th Ontury A.D.; that mistake
was the foundation of an erroneous statement by Lord Ilobhouse in
Sn Balusu’s case, 26 I.A., 113, 146.

ip) Colebrooke’s Trans, of the Royal Asiatic ^ Society, II, 457;
Sarkar Sastri, Adoption, 2nd Edn, 74; cited in 14 All., 71 supra

iq) Mit., I, 1, 10; I, 1, 11, 11, 1. 34.

(r) K. L. Sarkar, Mimamsa, 59.

(/i) lb., 5.

( 5 ) Tagore Law Lectures (1905), “The Mimamsa Rules of Inter-
pretation as applied to Hindu Law.” The rules are also given in
Bhattacharya*s Commentaries on Hindu Law (1893), 2nd Edn.,
Chap. II, III and IV; Ganapathi Iyer, Chap. VII; J. C. Ghose, I,
Chap. XIV; Dr. Jha’s Mimamsa Sutras (Panini Office: 1916).

(r) Gangadhar v. Hiralal (1916) 43 Cal., 944, 967; Tukaram v.
Narayan Ramachandra, (1912) 36 Bom., 339, 356 F.B.; Meenakshi v.
Mumandi (1915) 38 Mad., 1144, 1150, 1151; K. L. Sarkar, Mimamsa,
276; Gajadhar Prasad v. Gauri Shankar (1932 ) 54 All., 698 F B.

Rules of
interpretation.

38

SOURCES s OF HINDU LAW.

[cUAP. II.

Their special
and peculiai
nature.

he confined within strict limits (u) or the rule that a mere
recital of a reason for an injunction (arthavada) neither adds
to nor detracts from the rule itself — these are common to all
systems of law. Another principle is that, from express texts
dealin" with one subject, a rule can he deduced by analogy
(Atidesa) applicable to another subject of the same class
when there is no impediment {v}. An enumeration of persons
or objects may be illustrative and not exhaustive (tc) . In
d diffeient category, however, stand the artificial ways
of interpreting pai tides like ‘apz' (even), 'Va (or), ‘Cha
(and) for deducing new lules Some of the so-callcd
Miniamsa niaxim*^ are not Jaimini’s lules but popular
maxims (loukihanydyas) like the maxim of the staff and the
cake which occurs so often in the Commentaries and the
Digests, or the maxim of the cattle and the bull, or the
Matsvanya}a or the maxim of the biggei fish eating the small-
er which last IS the basis of the Kautilya’s Aithasastia (id).
There is nothing very recondite about many of the Mimamsa
lules except the teiminology, the manner of statement and the
ilhistiative referemes to the details of Vcdic sacrifices and
iituals (r) But theie aie seveial uiles w^hith appear spetual
and peculiai to the Mimamsa system ( xM Distinguished
Hindu jurists have diffeied in their application of the
Mimamsa rules to the texts of Hindu Law On the i rucial
question, whether propeilv oi ownciship is lem})oial or
spiiitual, b) the application of the Mimamsa rules,

(rdngadhar v Jlirulal (1916) 43 Cal, 944, 970, The iVlimamsa
rul( of Pdlliakraina was said to bt an arbilraiy canon of consti m i ion
and was not accepted in Pedda Rami Reddi v. Gnngi (1925) 48
Mad, 722, 741

(z) For insianct, tin rij^lit of a '^ister to siieteed to a female
prosiitHtc was, on tlio anaIo{i\ of In r ii^lu to succeed to the Saprati-
baiulha daya of a male, dediietul from the text of Manu, IX, 187.
I\ara}(m PtindaliL \ Laxman (1927) 51 Bom, 784, see also Dattatraya

V Mutha Bala (1911) 58 Bom, 119, V isvanatha v Doraiswami (1925)
48 Mad , 944, 959. Per Bhashyarn lyenpar J. in Ramalinga Miippan

V Pavadai Goundan (1902) 25 Mad, 519, 524, Per Kumarasami
Sasiri I in Suhramaina Iyer v Ratnavelu Chetty (1918) 41 Mad,
44, 74, Ramasami v Siindaralingasanu (1894) 17 Mad, 422, 435-436
There cannot be an atidaa upon an atidesa, a remote analogy upon
a remote analogy or a hetion upon a fiction Gangadhar v. Hiralal

(1916)43 Cal, 944, 966.

(w) Rajani Nath v Nityachandra (1921) 48 Cal, 643, 686

(compare the enumeration of Bandhus)

(tt’D K. L. Sarkar, Mimamsa, 354 et seq.; J C Ghose, I, 1027.

( t) K L Sarkar has traced the resemblances of many of these
Mimamsa rules with the rules of interpretation m Maxwell (lecture XI).

(x^) Eg, the Holaka maxim, see Daya Bh II, 40; Sankararama
Sastri, 146-9, K. L. Sarkar, Mimamsa, 254-5, the dvayoh pranayanti
maxim, K. L. Sarkar, ib., 398-405; Mit. II, i, 34, Daya. Bh. XI, v, 16.

i^arA. 20.]

MIMAI^SA.

Vijnanesvara comes to the conclusion that it is by popular
recognition and Jimutavahana arrives at the opposite result
(y). Nilakantha and Nandapandita, in connection with the
adoption of a daughter’s or a sister’s son, resorted to the
Mimamsa principles of interpretation and arrived at opposite
results ( 2 ). Again, when Vijnanesvara, in construing the word
^parents" in the text of Yajnavalkya, preferred the mother to
the father in the succession to one dying without male issue,
applying his own grammatical rules of interpretation, the
Smiilichandrika by applying Mimamsa and other rhles came
to the opposite conclusion that the father should be preferred
«o the mother. Madhava construed the .term ‘parents’ as
meaning that both should share the estate. Jimutavahana
applying his rules of interpretation preferred the father. The
Viramitrodaya, differing fiom the Mitakshara and characteris-
ing it as thoughtless, giv(js a divided opinion based on their
relative merits in , each case (a). The commentaries are full
of instances wheie applying lules of Mimamsa they differ
from one another ( aM .

In one case, a lule of Jaimini assumed great importance. The
text to be interpreted was that of Vasishtha: ‘Let no man give
-or receive an only son, since he must remain to raise up a
progeny for the obsequies of ancestors.’ In refeience to this
text, Mr. Mandlik says (p. 499) : “It is a rule of the Purva
Mimamsa that all the texts supported by the assigning of a
leasori are to be deemed not as vidhi (an injunction) but
simply as arthavada ( recommendatoi y ) . When a text is
treated as an aithavada, it follows that it has no obligatory
force whatever” •( 6) . Accordingly in the case which turned
upon this text, it was treated as having no binding authoritv.*
When the Judicial Cominittee had to deal with this matter in

(>) \'ijnanp‘ivaid applies the Lipsa Sutras of as inter-

preted hy the heterodox Guru Prahliakara (Mit., I, 1, 10) and
Jimutavahana applies the fundamental precept 'Stmt gahawo \ajeta
(saciifice for heaven), (Dayahhaga, Ch. I). K. L. Sarkar, Mimamsa,
390-395.

(z) K. L. Sarkar, Mimamsa, 417-428. Mandlik 190, (diarpuie’s
Trans., 72-74. — - - - >

(а) Viramit , 111, iv, 4 6 (Seilur’s ed . 417-418); Mil., II, iii, 2;
Smritichandrika, XT, 5, 9, Burnell, Dayavibha^a, §38 (page 27);
Dayabliaga, IX, 3 6.

(ffi) See Mom Ram Kolita v. Kern Kohtani (1880) 7 LA, 115,
5 Cal , 776, 786

(б) The illustrative text is “He sacrifices by the winnowing basket
because food is prepared by it.” The sacrifice has to be made with
the winnowing basket, whether food is prepared by it or not,
K. L. Sarkar, Mimamsa, 176. It is called the Hetuimnnigadddhikatatia.

Jaiminrs
Rule as to
assignment
of reason.

40

SOURCES OF HINDU LAW,

[chap. II^

appeal, they said of Jaimini’s rule: “That, if sound, would be^
conclusive as to Vasishtha’s text. But it is rather startling,
and a very intimate acquaintance with the Smritis would be
needed before admitting its truth. It has not been brought
forward in any case prior to this case from Allahabad. It
may, however, fairly be argued that one who, having the
power to give an absolute command, gives an injunctioi»
not expiessed in unambiguous terms of absolute com-
mand, but resting on a reason, is addressing himself

rather the moral sense of his heareis than to-

their duty of implicit obedience” (c) . The doubt ex-
pressed by the Judicial Committee as to the meaning of

Jaimini’s Rule is amply justified. Mr. Kisori Lai Sarkar,
setting out the sutra, explains that the rule relating to the
descriptive clause in the shape of reason distinguishes an
art/iavada oi recital from a vidhi or an impeiative lule of law
and that it only means that the reason should not be taken
as an essential part of the vidhi, the obligatoiy nature of the
vidhi text remaining unaffected by the assignment of the
ieason((/); for, according to the Mimamsa, it is only a
corrupt reason that vitiates but neither a good nor an
indifferent reason invalidates it. Dr. Ganganath Jha, a great
Minidinsa scholar, states that ‘the principle deduced under the
H etuvannigadadhikarana is that “when an injunction is
followed by the statement of a reason — this statement of
reason has no mandatory force”, certainly this does not
vitiate the mandatory natuie of the injunction itself’ le)-.
Vij nanesvara himself treats the assignment of a reason as not
invalidating a vidhi oi positive lule of law. Commenting
upon the verse of Yajnavalkya which prohib^s the marriage
of a Sudra wife by a Brahmin, adding the reason ‘because
out of her, he is himself born,’ Vijnaiiesvara says “Here by
assigning the reason that, out of her he is born himself, the
author prohibits a marriage with a Sudra woman for one who
is desirous of begetting a Naityaka (necessary) son”, thus^
giving full effect both to the reason and to the vidhu So also
Madhavacharya treats an uncontradicted eulogium (artha-
vada) as ecjuivalent to an oidinance (vidhi) (e^).

(c) Sri Balusu's case (1899) 26 I.A., 113, 146; 21 All., 460^
22 Mad . 398.

(d) K. L. Sarkar, Mimamsa, 175, 451-453; Ganapatlii Iyer, 292;
Chose, Vol. I, 1032.

(e) Jha, H L S., II, Preface iv; Sankararama Sastri, 66-68; Jha’s
Mimamsa Sutras, pp. 40-43.

(c^) Mil. on Yajn., I, 56; Vidyarnava’s trans., 120; Setlur’s ed*
of Parasaran^adhaviyam, 552.

PARA. 21.]

MIMAMSA.

41

§ 21. Another rule which is conveniently summed up in
the maxim factum valet is that a violation of a rule, which
regulates mere matters of form and is only directory in its
nature and does not go to the essence of a transaction does
not, if the act, for instance, adoption or marriage, has been
completed, result in its invalidity. If the act is void in law,
there is no room for the application of the maxim. In Sri
Balusu^s case, the Privy Council point out that the two parts
of the maxim Quod fieri non debet factum valet (e^) “apply
to two different departments of life. Many things which ought
not to be done in point of morals or religion are valid in
point of law.” And the principle is only applied where a rule
has already been reduced by independent reasoning to a moral
precept or to a directory rule, falling short of an imperative
lule of law (/). The maxim is indeed one on the border-
land between morals and positive law. Jimutavahana’s
statement that ‘a fact cannot be altered by a hundred texts’
is, no doubt, striking (g) but, it is not, as was once
supposed, peculiar to the Bengal School (^^).

While therefore, according to the orthodox view, the
Mimamsa rules of interpretation have been applied and are
applicable in the interpretation of Hindu law, they are of
very doubtful utility in the present day administration of
Hindu Law. Many of the rules are a reduplication of common
sense or trained reasoning. Such of them as are peculiar to
the Mimamsa scheme of interpretation are clearly difficult of
application. To enable one to apply Jaimini’s rules safely
and correctly, mere knowledge of Sanskrit and of the
Mimamsa rules^ of interpretation is not enough; an extensive
and practical knowledge of the details of the Vcdic sacrifices
and rituals and a specialised training as a Mimamsaka
are indispensable (h). Almost all the difficulties due

(e2) “What utight not to be done is valid when .done,” Wharton’s
Law Lexicon, p. 708.

(/) Sn Balusus case (1899) 26 I.A., 113, 149; 21 All., 460, 487;
22 Mad, 398, 423, Kunwar Basant v. Kunwar Brij (1935 ) 62 I A.,
180, 194, 195 ; 57 All., 494.

(g) Dayabhaga, II, 30, Jolly, T L.L., 113; Dr. Wilson points out
that even Jimutavahana never applies this principle except to cases,
where in his view of the law, a person is doing that which he is
strictly entitled to do, though the exercise of the right violates a moral
obligation to others. (Dr. Wilson’s Works V, 71-74.)

(gi) Wooma Daee v. Gokoolanund (1878) 5 I.A., 40, 53, 3 Cal,
597, 601.

{h) J. C. Chose (Vol. I, 1026) discusses these rules and concludes:
“The rules of Jaimini were meant for sacrifices and ceremonial
observances but in regard to Vyavahara or positive law, they seem to
have little application.”

Factum Valet.

Mimamsa
rules now of
doubtful
utility.

42

SOURCES OF HINDU LAW.

[chap. II.

The Com-
mentaries and
the Digests

to conflicts, obscurities and lacunae in the Smiitis, have
been more or less removed by the Commentaries and Digests
of Hindu lawyers from the 8th Century onwards and
by the decisions of Courts. Any fresh interpretation of the
Smrilis without the aid of the established Commentdnes and
Digests by an independent application of the Mimanisa rules,
would, in most cases, be unsafe.

§ 22. All the works whuh come undci the head of
Smritis agree in this — that they claim and are admitted to
possess an independent aulhoiily Hut while the authority
of the precepts contained in the Smiitis is beyond dispute,
their meaning is optn to various iritei jirelations and has been
and IS the subject of much dispute which must be determiped
by ordinal y process of reason (i) Such dclerniination,
however, can onlv be within very narrow limits and confined
to points neithei (ovoied nor made clear by the (Commentaries
and Digests to be pieseiitly mentioned Every Smiili did not
covei the whole ground of law and even such of the rules
as they laid down were not always expressed in sufli( lent
detail and theie were (onflicts and obscuiilies in them
Natuiall) the law as (ontained in the Dharmasastras formed
the subject of irequent exposition by learned Hindu lawyers
which took the foim eithei of Commentaries on parlnular
ISmntis or Nibandhas or Digests of the entire body of Smriti
mateiial The authois of the Commentaries and Digests assume
that the Smiitis constitute a single body of law, one part of
which supplements the other, and every part of which, if
properly undei stood, is capable of being reconciled with the
other. They discarded much of what had become obsolete
either with a simple statement to that effect or on the ground
that they were no longer admissible in the present age of sms
(Kaliyuga) (;). They iiiodihed and supplemented the rules
111 the Smrilis, in pait by means of their own reasoning
and in pait in^ the light of usages that had grown up (/c).
They did their work so well that their Commentaries and
Digests have in effect superseded the Smritis, at any rate,
in very large measure. Ihe duty of a Judge, therefore, as
pointed out by the Judicial Committee (/) 'is not so much to
enquiie whether a disputed doctrine is fairly deducible from

(i) Sri Balusus case (1899) 26 I.A., 113, 131; 22 Mad, 398.

(/) Jolly, L & C, 96

(A) Jogdamba v Secretary of State (1889) 16 Cal, 367, 375;

Chandika Buksh v. Muna Kunwar (1902) 29 1 A , 70, 24 All, 273,
280» Minakshi v. Ramanada (1888) 11 Mad , 49, 52, F.B.

(/) The Collector of Madura v. Moottoo Rarnalinga Sathupathy

lO T A Q07 AQA

PARAS. 22 & 23.] THE COMMENTARIES.

43

the earliest authorities as to ascertain whether it has been
received by the particular school which governs the district
with which he has to deal and has there been sanctioned by
usage.’ The concluding words of this observation give “no
countenance to the conclusion that, in order to bring a case
under any rule of law laid down by recognised authority for
Hindus generally, evidence must be given of actual events to
show that in point of fact the people subject to that general
law regulate their lives by it” (m) . In a very recent case, the
Judicial Committee observe that “the commentatons, while
professing to interpret the law as laid down in the Smritis,
introduced changes in order to bring it into harmony with
the usage followed by the people governed by the law; and
that it is the opinion of the commentators which prevails in
the provinces where their authority is recognised” (ti). After
referring to their observation in Bhyah Ram Singh v. Bhyali
Ugar Singh (o) that the Milakshara “subordinates in more
than one place the*language of texts to custom and approved
usage,” they cm[)hatically lay down that “in^lhe event of a
conflict between the ancient text writers and the commentatois,
the opinion of the latter must be accepted” (p),

23. The Code of Manu has been the subject of numer- Commentaries
oils commentaries. Of these, the most renowned aie those of
Mcdhatilhi, Govindaraja and Kulluka. It appears that a much
earlier wilier, Asahaya, commented upon it but his work is
not available.

Medhalithi’s work is the eailiest of the commentaries Medhatithi.
extant on Manu and is frequently referred to as of high
authority and mentioned in the Mitak^^hara and the Smriti-
chandrika (</). His date is probably between 825 — 900 A.D.

It IS not certain whether Medhatithi’s home was Kashmir
oi Southern India (r). His commentary was secured by

(m) Bhagwan Singh v. Bhagwan Singh (1899) 26 J.A., 153, 165,
21 All, 412, Ganga Sahai v. Lekhraj Singh (1886) 9 All., 253.

(n) Atniaram Abhimanji v. Bajirao Janrao tl935) 62 LA., 139,
143; 39 CWN, 646 , 68 MLJ., 673.

(o) (1870) 13 Moo I A, 373, 390.

(/;) Atniaram Abhimanji v. Bajirao Janrao (1935) 62 I.A., 139, 143,

{q) Mandlik has published the commentary. Also Gharpure,
Dr. Jha has translated the whole Bhashya of Medhatithi in the
(Calcutta University series.

ir) S.B.E, Vol. XXV, Biihler’s Introduction, 123; Kane, 269, 270;
Jolly L & C, 66 says that very probably his native country is to be
souaht in Kashmir, although already in early times he is quoted in
South Indian works. Ganapathi Iyer thinks that he belongs to South
India, p. 208. At page 6 (T.L. Lectures) Dr. Jolly apparently took
the view that he is a Southerner as Kamalakara speaks of him as a
Southerner (Kane, 270) .

44

SOURCES OF HINDU LAW.

[chap. II.

CoTindaraja.

Dharesvara.

Kulluka.

King Madanapala of Kashtha in the 14th century A.D. ( 5 ) ;
but was not recast as Mr. Colebrooke and Di. Saivadhikari^
following him, thought (/).

Govindaraja belonged to the eleventh 01 twelfth century
A.D. (n). He is referred to by Jimutavahana, Kulluka and
by the polymath Hemadri (13th century A.D.). According
to Dr. Jolly (v), the Manutika of Govindaraja is very useful
for the interpretation of the text as it contains a full para-
phrase of the text and is marked by conciseness of expression
and philological accuracy.

King Bhoja of Dhara (1000 to 1055 A D ) who was a man
of encyclopaedic learning and varied literal y activities^
apparently wrote a commentary on the Manu Smiiti which
IS lost {iv) . His views appear to have generally agreed with
those of the authoi of the Smritisangraha. He is quoted by
Vijnanesvaia and Jimutavahana.

Kullukabhatta’s commentaiy is the best known and the most
renowned of all the commentaries. He refers to Medhatithi
and Govindaiaja. In Pedda Romappa v. Banyan Seshanuna
the Privy Council cite Sii William Jones’s eulogy upon
Kulluka’s work as one “of which it may perhaps be said very
truly that it is the shortest yet the most luminous, the least
ostentatious yet the most learned, deepest yet the most
agreeable, commentary ever composed on any author, ancient
or modern.” Dr. Jolly does not agree with this(y). Sir
Asutosh Mookerj'ee A.C.J. says: “Kullukabhatta is however
remarkable for the narrowness of his views and his importance
IS by no means commensurate with his popularity which was
due in a large measure to his brevity” (r). Mr. Kane’s estimate
(a) that Kulluka’s commentary, though not original, is concise
and lucid and his remarks are always to the point is jusU
Though Sir William Jones’s eulogy is exaggerated. Kulluka’s
exposition on the whole, is better than the involved comment-

( 5 ) Kane, 388 See colophon to Medhatithi on Manu Smnti, ch 11.
(Jha, Vol. 1, pt. II, 540.)

it) T L.L , 6-8; Sarvadhikari, 249.

iu) Kane, 315.

( 1 ;) Jolly, L & C, 66.

(to) Jolly, L & C, 68, Kane, 275-279

(x) (1880) 8 I.A., 1. 2 Mad., 286, 291

(y) Jolly, TLL, 11; L & C, 67

(z) Rajani Nath v. Nitai (1921) 48 Cal, 643, 691, F B.
ia) Kane, 359.

PARA. 24]

THE COMMENTARIES.

45

aries of others. He belonged to Bengal and composed his
commentary in Benares. Dr. Buhler (6) and Sir Asutosh
Mookerjee A.C.J. (c) place Kulluka in the 15th century A.D.
but it appears that the Rajaniti Ratnakara of Chandesvara
(c. 1314 A.D.) quotes Kulluka on Manu. Mr. Kane therefore
places his work about 1250 A.D. (d).

§ 24. Equally numerous are the commentaries on the Commentaries
smriti of Yajnavalkya. The earliest commentary on it is that of
Visvarupa. It is known as Balaknda (e). On examining Visvarupa*
the whole evidence, Mr. Kane considers it as fairly established
that Visvarupa is identical with Suresvara, a pupil of the
great Sankaracharya (788-820 A.D.) and therefore places him
about the beginning of the 9th century A.D. Visvarupa’s
commentary was first discovered in Malabar and the text and
translation of Visvarupa’s commentary on Inheritance was
published by S. Sitarama Sastri of the Madras and Pudukotta
bar (/). In Pudiava Nadar v. Pavanasa Nadar (g),
Coutts-Trotter J. declined to act upon it on the ground that it
had not been scrutinised by a competent critic of Sanskrit texts.

The entire commentary has been recently edited and published
by Dr. T. Ganapathi Sastri in the Trivandrum Sanskrit series.

On a comparison of the text of Visvarupa with the citations from
it in several other works, Mr. Kane comes to the conclusion
that it is in the main genuine but that, in few cases particularly
in the Vyavahara section it is corrupt or deficient (h) , There
can therefore be no doubt as to its importance or genuine-
ness (i). Though on the central question of the origin of
proprietary right, both Visvarupa and VijnanesvaTa agree,
they differ on many other points (;).

ib) S.B.E., Vol. XXV, Introdn., 131.

(c) Rajani IS/ath Das v. Chandra Dey (1921) 48 Cal., 643,

688, F.B.

{d) Kane, 362, 363. Other commentators on Manu of lesser
importance are Sarvajnanarayana, Raghavananda, Nandana and
Ramachandra.

(e) It appears from Visvarupa’s commentary that there were
earlier commentaries on Yajnavalkya which are not available. Deva-
bodha has also commented upon the Yajn. Smriti: the Prakasa is
another commentary.

(/) Visvarupa, Preface (1900); J. C. Chose; Hindu Law, Vol.
II, 119.

(g) (1922) 45 Mad., 949, 974.

(A) Kane, 259.

(i) The commentary of Asahaya on Narada (Introdn. Chapter I,
15) as edited by Kalyanabhatta, mentions Visvarupa along with Manu
and Narada as one of the law books to be consulted in Courts. It
refers to Visvarupa’s commentary on the Yajn. Smriti. (Kane, 247-248.)

(;) Eleven points of difference between the two are noticed by
Kane, 259.

46

SOURCES OF HINDU LAW.

[chap. II.

Vijnanesvara.

His early
importance.

Next, 111 point of time but by fai the most celebrated and
authoritative of all the commentaries on the Yajnavalkya
smriti, IS the Mitakshara by Vijnanesvara or Vijnana
Yogin (A:). The age of Vijnanesvara has been hxed by recent
lesearch to be the latter part of the 11th centuiy (/). “The
work of this great jurist whose logical acumen, judging from
his woik seems to have been lemaikable” {in) betaine a
standard work at an early date in the Dekhan and also in
Benaies and a great pait of (Northern India (n). He belonged
to the Older of ascetics and his age is fixed with leferenee to
his contemporary and pation the Chdlukya King Vikramaditya
of Kalyan in Hyderabad (1076-1126 AD.). His ticatise
must therefoie be ‘placed about the end of the 11th century or
the beginning of the 12th centurv AD A((*ording to Di.
Jolly, Vijnanesvara is called a southein author in thc*^
Madanaialna (o). Fiom his long and anxious dis( ussion on
the son’s light bv birth, on the widow’s right of succession
and on the sapinda lelation so as to jiiefer the mothei and to
bring in the bandhus and from his insistem e on 'the com|)act
senes of hens’, it is quite evident that Vijnanesvara found the

(A) The p.^rtion of the woik which treats of inheritance is familiar
to students throuj;h Mr Colchrookc’s translation. Tlu poition on
Judicial Procedure has hten translated hv Mr W. MacNap,hten and
f<»rmi5 the lattt 1 pari of hist ^ohlmc of his woik on Hindu l.aw A
table of contents of ihi* entire work will be found at the end of the
hrst volume of BoiiodaileV R(‘p(uts (folio 1825) Ihe Acharadh>ava
with the Virarnitrodayatika of Mitramisra is translated by J K,
Ghaipuie (1936) The jMitak'-'hara with the gloss of Balambhatta
( Achaiadhyaya) I's translated by Srisa Chandra Vidvarnava (1918).
The Prayaschittadhyava is translated by S N. Naraharayya (Sacred
laws <»f tlu* Aryas senes (1913) J

(/) W & B, 5, Macdonell, S L. 429

im) Per Mr Ameer Ah in Buddha bingh v. Laltu Singh (1915)
42 1 A , 208, 220, 17 All, 604, Bhyah Ham Singh v. Bhyah Ugur
Singh (1870) 13 M.I A , 370, 390 Mr Kane says that Vijnanesvara
IS desciibed in the Dwaitanirnaya of Sankarabhatta of Benares
(c 16th century A D ) as the most eminent of all writers of nibandhas,^
(Kane, 247). Dr Jha s statement (HLS., I, 17) that no Hindu
lawyer of the old school will admit that “the Mitakshara — and tlie-
Mitakshara alone — represents the authoritative law fe)r Northe^rn
India” means little as the Viramitrodaya is based upon it and closely
follows it Mr Colebrooke (Strange’s H L., 4th edn., 317) refers to
the formula employed by Indian judges prior to the institution of
Adawluts m their references to Pandits for opinion “to consult the
Mitakshara” which demonstrates that it was implicitly followed in the
city and province of Benares The widespread influence of the
Mitakshara from the beginning is attested by its being made the
subject of an influential commentary in the court of King Madanapala
in the fourteenth century, if not earlier.

(n) Jolly, L & C, 68.

(o) Jolly, L & C, 68; the date of the Madanaratna is the 15th
century AD (Jolly, L & C, 80), according to Kane (1425-1450 A.D )
page 393

PARA. 24.]

THE COMMENTARIES.

47

law in a very unsettled condition. This far-seeing jurist and
statesman, by practically freeing Hindu Law from its
religious fetters and making it readily acceptable to all
communities in all parts of India, established it on new
foundations.

The Mitakshara in its turn has been the subject of several
commentaries (p). Amongst them, the best known are the
Subodhini of Visvesvarabhatta (1360-1390 A.D.) {q) and the
Balambhatti said to be written by Balakrishna alias Balam-
bhdtta in the name of his mother Lakshmidevi towards the end
of the 18th century A.D. {q^).

•

The authority of the Mitakshara is supreme throughout
India except in Bengal (r) where it is superseded by the
Dayabhagd of Jimutavahana on principles a id points on whicn
they diffei ; but in other matters, it is of high authoiity even
there. In Gujerat, in the island of Bombay and also in the
i\orth Konkan, howevei, its authority is controlled by the
Mdyukha on the very few points on which thfey differ ( 5 ), the
general pimciple however being to cOiistrue the Mitakshara
and the Mayukha so as to harmonise them as far as it is
reasonably possible (t). Its authority is supreme in the city
and province of Benares and it stands at the head of the works
referred to as settling the law in the South and West of India
and it is the law of the Mithila school except in the few matters
in respect of which the latter has departed from the
Mitakshara (wj.

Another commentator on the Yajudvalkyasniriti is
Apararka or Ap^iaditya, a king of Konkan, belonging to the

(p) Kane, 290.

(9) Kane, 389. Vyavahara adhyaya is translated by J. R. Gharpure
(1930), bGG Buddhasingh's case (1915) 42 lA, 208, 223, 226. 37
All., 604.

(9I) Balambhatti has been published by Mr. J. R. Gharpure.

(r) Collector of Madura v. Mootoo Ramalinga Sathupathy (1868)
12 Moo. LA., 397, 432, 433, 435. Raniachandra's case (1914) 41 I.A.,
290; 42 Cal, 384, Buddhabingh v. Laltu Singh (1915) 42 I.A., 208,
216, 225; 37 All., 604.

(s) Colebrooke’s note, 1 Stra. H.L., 317; W & B, 10; Krishnaji v.
Pandurang 12 B.H.C., 65.

it) Bai Kesierbai v. Hunsraj Morarji (1906) 33 I.A., 176; 30
Bom., 431 approving Gojabai v Shahajirao (1892) 17 Bom., 114.

(a) Bhagwandeen v. Mynabae (1867) 11 Moo. LA., 487, 507, 508;
Girdhari Lall Roy v. The Bengal Govt. (1868) 12 Moo. LA., 448;
Sounndra Mohan Sinha v. Hariprasad (1926) 52 LA., 418; 5 Pat.,
135, 155; Kamlaprasad v. Murk Manohar (1934) 13 Pat., 550, 570.

Apararka.

[chap. II,

SOURCES OF HINDU LAW.

dynasty of Silaharas (v). His work is of paramount autho-
rity in Kashmir and is referred to with respect in many of
the later Digests. His commentary has been published in
two volumes. A part of it, stating the order of succession
has been translated in the Madras Law Journal (w).
Apararka is quoted in the Smritichandrika, the Madanapari-
jata, the Dattaka Mimamsa and the Sarasvati Vilasa. As
observed by the Privy Council, Apararka’s authority is
acknowledged by the expounders of the school of the
Mitakshara (x).

Sulapam. Sulapani, a Bengal writer (c. 1375-1460 A.D.) wrote a

commentarv called Deepakalika on the Yajnavalkyasmriti.
He IS referred to 'by Raghunandana, another Bengal writer
and in the Viramitrodaya (j).

Vira- Mitramisra has written a commentary on the Smriti of

miirodaya. Yajnavalkya and also a separate treatise or nihandha, both of
them being called the Viramitrodaya (z). , The age of these
two works IS somewhere between 1610-1610 A.D. (a). Dr.
Jolly refers to the commentary as an elaborate and valuable
work (6). Mitramisra wrote the Digest as well as the com-
mentary on the Smriti of Yajnavalkya under the orders of
Bundela Virasinha, his patron and friend, who was a ruler at
Orccha. Mr. Kane says that the nibandha, Viramitrodaya, is
the largest known on the Dharmasastras. Mitramisra has cer-
tainly handled his matter competently and with a wealth of
learning, with great attention to detail and a careful considera-
tion of opposite views. The text of the Dayabhaga portion was
published by Golapchandra Sarkar Sastri (1879) with an
English translation. Throughout the Mitakshara jurisdiction,
Mitramisra’s treatise, the Viramitrodaya, which closely follows
the Mitakshara, is of high authority. It is declaratory of the
law of the Benares School especially on points left doubtful

(r) Jolly, L'& C, 70, Jolly, T.L.L , 13; Kane, 333, W & B, 19.

(w) Translated in 21 Mad LJ (journal) 10, 49, 93, 150, 196, 254,
305, 365, 432, 483, Chose, HL, II, 238-272, Sarvadhikari (2nd ed.,
329-332) gives only an abridgement

(x) Buddha Singh v. Laltu Singh (1915) 42 I.A., 208, 221, 37
AIL, 604, 617, 618.

(r) For a translation of the chapter on Inheritance, see Chose, H.L.,
Vol. II, 542-549. Dayatatva XI, 56; Setliir, 512, Viramit , IV, 7, p. 433.

(z) A translation of the latter has been published by Mr. Setlur
also (Part II, 275-469) Part of his commentary on the Mitakshara*
Achara adhyaya has been translated by Charpure in “the Collection of
Hindu Law Texts” series.

{a) W & B, 21, 29, Kane, 446.

(6) Jolly, L & C, 70.

PARAS. 24 & 25.]

THE COMMENTATORS.

49

by the Mitakshara (c). As far as Southern India and
Western India are concerned, while it was originally left out
of consideration in the Ramnad case (d), its high authority
is now fully recognised. “It supplements many gaps and
omissions in the earlier commentaries and illustrates and
elucidates with logical preciseness the meaning of doubtful
prescriptions” (e). In Buddha Singh^s case (/), the views
of the Viramitrodaya were preferred to those of the Smriti-
chandrika and the Subodhini. “The Viramitrodaya may also
like the Mitakshara be referred to in Bengal >vhere the
Dayabhaga is silent” (g) .

§ 25. The Mitakshara is supplemented in Southern India Authorities
by the Smritichandrika, the Dayavibhaga in Parasaramadha-
viya, the Sarasvati Vilasa and the Vyavahara Nirnaya (h) ,

The Smritichandrika is by Devannabhatta or Devananda- Smriti'
bhatta, a Southern author. Its date is about 1200 A.D. (i) . chandnka.
It has often been stated to be a work of great authority in
Southern India and as next to the Mitak^ara. Dr. JolK
says that it is remarkable for its originality (/). Devanna-
bhatta’s treatise is conspicuous for its method, clear-sighted-
ness, erudition and the ease with which he moves through his

(c) Girdharilal v. the Govt, of Bengal (1868) 12 Moo. I.A., 448,
466; Gina Bai v. Sadashiv (1916) 43 LA., 151, 159, 160, 43 Cal., 1031;
Buddhasingh v. Laltusmgh (1915) 42 I.A., 208, 227, 228, 37 AIL, 604,
Ramachandra Marthand Waikar v. Vinayek V. Kothekar (1914) 41

I. A., 290, 42 Cal., 384, Jatindranath Roy v. Piagendranath Roy (1931)
58 I.A., 372, 59 Cal., 576.

{d) Collector >!>/ Madura v. Moothoo Ramalinga Sethupathy (1868)
12 Moo. LA., 397, 432, 438; Lulloobhai v. Cassibai (1880) 7 LA., 212,
230, 5 Bom., 110, 118.

(e) Vedachala Mudaliar v. Subrahmanya Mudaliar (1921) 48 LA.,
349, 361, 44 Mad., 753, 764; Baluswami v. Narayana (1897) 20 Mad.
342, 349; Muthuswami v. Muthukumaraswami (1893) 16 Mad., 23,
30; Girjabai v. Sadashiv (1916) 43 LA., 151, 159, 43 Cal., 1031, 1047
Jagannath Prasad Gupta v. Rangitsingh (1897 ) 25 Cal., 354, 367.
Bindra v. Mathura 6 Luck., 456; A.LR., 1931 Oudh, 17 F.B.

(/) Buddhasingh v. Laltusmgh (1915) 42 LA, 208, 226, 227 ♦ 37
All., 604.

{g) Moniram Kolita v. Ken Kolitani (1880) 7 LA., 115, 153,
5 Cal., 776, 788, 789.

(A) Collector of Madura v. Mootoo Ramalinga (1868) 12 Moo.
LA., 397

{i) Jolly, L & C, 75; Kane, 346; The Dayabhaga portion of the
work has been translated by Krishnaswarai Ayyar in 1867; also by

J. C. Chose, Vol. II, 328-420; Setlur, Part I, 212-316. For its authority
in Northern India, see Deo Kishan v. Budh Praka^h (1883) 5 All,
509, 511 F.B.

(;) Jolly, T.L.L., 20.

4

50

SOURCES OF HINDU LAW.

[chap. IL

Madhava-

charva

subject. In Vedachalas case (A:), on the general question
raised, whether spiritual benefit was a test of preference
among bandhus of the same class in the Mitakshara school,
the Privy Council thought that the Smritichandnka ranked as
the most authoritative commentdry on Vijnanesvara’s work
and held in Southern India a parallel position to the Mayukha
in Bombay In Buddhasingfis case (/) which overruled the
decisions of the Madras High Court liased on the Sniriti-
chandrika, a difteient estimate was given The Judicial
Committee, after pointing out that the Smiitichandrika
admittedly diffeis from the author of the Mitakshara in several
essential lules of law, said ‘‘it seems, to say the least, doubtful
whether an enunciaClon in the Smiitichandiika can be safely
applied except peihaps b\ wav of analogv to explain a dubious
or indeterminate phiase oi term in the Mitakshaia” In othei
cases wheie its aiithoiitv on specifn questions in lespeit of
inheritance to stiidhana was tested, its views were not
followed (///) Again while the Mitakshaia gives the
preference to the ^mother on the giound of propinquity, the
Smritichandnka gives the preference to the father (n) The
authority of the Smritichandrika must theiefore be confined
to questions where the Mitakshara is silent and the leasoning
of the Smntichdiidrikd is consistent with the rules m the
Mitakshara. Theie can however be little doubt that its
general authority is fairly high on points on which it does not
come into conflict with the Mitakshara It is a work which is
referred to throughout India with gieat respect by Nilakantha,
Mitramisra and others.

The Paiasaramadhaviya was written by the great
Madhavacharva or Vidyaranya, the prime minister of
the kings of the Vijayanagara dynasty. His date is between

(/n VcdadialA \ Suhramania (1921) 48 TA, ^49, 44 Mad, 75 >

(/) (1915) 42 I A, 208, 223, 37 All, 604, 612, overruling Surayya

V Lakshminarasamma (1882) 5 Mad, 291, and Chinnaswami Pillai v.
Kunju Pdlai (1912) 35 Mad, 152, Soobramiah Chetty v Nataraja
Pillai (1928) 53 Mad, 61, follows 42 lA, 208 See also if oomadevi

V Gokoolanund Das (1878) 5 I A , 40, 46, 3 Cal, 587, 594

(m) bimmamammal v Muttammal (1880) 3 Mad, 265, 269,

M uthappudayan v Ammani Animal (1898) 21 Mad, 58, Salemma v.
Lutchmanna Reddi (1898) 21 Mad, 100, Venkatasubrahmanya Chetti

V Thayarammal (1898) 21 Mad, 263-. Rajii Graniany v Ammani
Ammal (1906 ) 29 Mad., 358

in) XI, 3, 9, Kristnaswaini Iyer’s translation, 182 The adminis-
tration of Hindu law in Madias during the earlier period owed most
to the Smritichandnka

PARAS. 25 & 26.]

THE COMMENTATORS.

51

1330-1385 A.D. (o). The extant Parasarasmriti contains no
chapter on Vyavahara but Madhavacharya has written his
manual dealing with it also as part of his commentary on the
Parasarasmriti. Dr. Burnell has published a translation of
the Dayavibhaga portion of the work (p).

The Sarasvati Vilasa is another work of authority in
Southern India. It was written by Prataparudradeva, a King
of Orissa. Dr. Jolly, Mr. Foulkes and Mr. Kane place the
work in the beginning of the 16th century (q). It is refeired
to in several cases (r).

Varadaraja’s Vyavaharanirnaya (s) is ajso an authority m
Southern India and its views are treated with respect by the
expounders of the Benares School (/}. He lived at the end
of the 16th century or the beginning of the 17th century (u) ,

Another popular South Indian digest is the Smriti Mukta-
phala of Vaidyanatha Dikshita (c. 1600 A.D.) (v). It
deals with all topics. It is referred to as a work of authority
in several cases (w) .

§ 26. The works which supplement the Mitakshara in
Western India are the Vyavahara Mayukha, the Viramitrodaya

(o) Jolly, L & C, 71; Kane, 380. As to its authority, see the
Ramnad case (1868) 12 M.I A., 397, 436, 473, Muttuvaduganadha v.
Dorasinga (1881) 8 LA, 99, 109, 3 Mad, 290, 302.

(p) For other translations, see 1 Madras Law Joiiinal, 442, 509,
573, 641, Ghose, Hindu Law, Vol II, 614-643, Setlur, Part I. 317-354;
an abstract is gi^n by Sarvadhikari, II edition, 350-354. For its
authority in South India see Bhugvandeen v. Myna Baee (1867) 11
M.I A., 487, 508, Collector of Madura v Mootoo Ramalmga (1868)
12 M.LA , 397

iq) Jolly, L & C, 82, Foulkes’ Preface to Sarasvati Vilasa, xvi,
xvii; Kane, 413; The Rev. Mr. Foulkes has published the text and
a translation. Also J. C. Ghose, II, 990-1020; Setlur, Part I, 119-211.

(r) Vedachala v. Subrahmania (1921) 48 LA., 349, 363, 44 Mad.,
753 , Pedda Ramireddi v. Gangireddi ( 1925 ) 48 Mad , 722, 731 ,
Jatindranath Roy v. Nagindranath Roy (1931) 58 LA., 372, 376, 59
Cal,, 576, 581; Krishna v. Sami (1886) 9 Mad., 64 F.B., 72.

( 5 ) Dr. Burnell has translated it.

(/) Biiddhasingh^s rase (1915) 42 T A , 208, 222, 37 AIL, 604, 618

(m) Jolly, L & C, 86.

(r) Jolly, L & C, 86, text printed in Chidambaram and Kumba-
konam in Grantha characters.

iw) Venkata v. Subhadra (1884) 7 Mad., 548; Vayidinatha v.
Appu (1886) 9 Mad, 44, 49, 52, 55; Viraraghava v. Ramalmga (1886)
9 Mad., 148, 162; Bnndavan v Radhamony (1889) 12 Mad, 72, 80;
Visvasundara v. Somasundara (1920 ) 43 Mad. 876, 892, translated m
part in 6 M.L.J., 373, Setlur 544.

Sarasvati

Vilasa.

V aiadaraja.

V^aidyanatha

Dikshita.

Authorities
in Western
India

52

SOURCEi» OF HINDU LAW.

[chap. II,

Vyavahara

Mayukha

and the Samskara Kaustubha ( a ) . The Mitakshara ranks first
and paramount in the Maratha country and in Northern Kanara
and Ratiiagiri while in Gujerat, in the island of Bombay and
in North Konkan (/) the authority of the Mitakshara is subject
to the authority of the Mayukha where the latter differs from
it. But as laid down by Telang J. and approved by the Privy
Council, the general principle is to construe the Mitakshara
and the Mayukha so as to harmonise one another whenever and
so fai as It Is reasonably possible ( 2 ). The so-called
differences between the Mitakshara and the Mayukha are
more due to case-law' than to actual differences of opinion
which, though striking, are confined to a few points ( 2 ^). In
Ahmednagai, Poona and Khandesh, the Mitakshara is con-
strued in doubtful rases in the light of the Mayukha which
IS apparent!) of almost equal authority (a). The Mayukha
has been translated b\ Mi Borrodaile, by Mr. V. N. Mandlik
and b) Mr. J R Ghaipuie (6).

r

The authoi of the Vvavahaia Mayukha is Nilakanthabhalta
who belonged to^a famous Maharashtra family of writers that
had settled in Benares Nilakantha’s treatment of his subjects
shows conspicuous ability, neatness and lucidity He generally
omits 11 relevant discussions and takes a practical view of
things and he is < ertainlv entitled to be regarded as the founder
of a school of Hindu Law. His work belongs to the beginning
of the 17th centurv (c) He wrote a number of other works
of w'hich the Samskara Mayukha is also treated as an
authontv.

{x) Collector of Madura \ Mootoo Ramahnga 12 MIA,

397, 436, 438, Bhagiratha Bhai v Kahnuji Rao (1887) 11 Bom., 285,
293, 294 FB

(>) W & B, 13, 11, knshiiaji v. Pandurang (1875) 12 Bom H.C.,
65, Lallubhai v Mankuvarbhai (1878) 2 Bom., 388, 418; Sakharam
V Suabhai (1879) 3 Bom., 353, Balkrishna v. Lakshman (1890) 14
Bom, 605, Janhibai v Sun^a ibid, 612, 623, Narhar v. Bhau ,(1916)
40 Bom , 621, Bhirnabai \ Guriinath Gouda (1932) 60 I A., 25; 57 Bom.,
157, 162

iz) Bai Kestserbai v Hunsraj Morarji (1906) 33 LA., 176. 30
Bom, 431, 442, approving Gojabhai v Shrimant Shahajirao (1893) 17
Bom, 114, 118, Bhagwan v Warubai (1908) 32 Bom, 300.

(zl) eg, father preferred to mother, IV, viii, 14, nephew to half-
brother, IV, viii, 16, Sister to grandmother, IV, viii, 19, and the joint
successions which are not re<ognised, IV, viii, 20, and succession to
stridhana

(a) Bhagirathi Bhai v kahnujirav (1887) 11 Bom, 285, 294, F.B.

(b) Mr Kane has also published the text (Poona, 1926).

(c) Kane, 440, Jolly L & C. 84.

PARAS. 26 & 27.] THE COMMENTATORS.

53

The Samskara Kaustubha was written by Anantadeva in
the latter half of the 17th century. It is part of a digest
called Smriti Kaustubha (d).

§ 27. In Mithila (or Tirhut and North Bihar) (e), the
authority of the Mitakshara prevails except in a few matters
in respect of which the law of the Mithila School has departed
from the Mitakshara. The Vivada Chintamani is treated as a
work of highest authority in the Mithila School (/). It was
written in the 15th century by Vachaspati Misra under
the patronage of King Bairavendra alias Harinarayana of
Mithila (g). The Vivadachintamani has been translated by
Prossonno Coomar Tagore (h). An earlier work of authority
in the Mithila country is the Vivada Ratnakara by Chandes-
vara (i) in the beginning of the 14th century. Chandesvara
was the minister of King Harasimhadeva who conquered Nepal
for his master (;). A third authority in the Mithila School
is the Vivada Cliandra of Misarumisra (k) written under the
order of Princess Lakshmi Devi of Mithihi about the end of
the 14th century (/).

The Madanaparijata, composed by Visvesvarabhatta, under
the auspices of King Madanapala of Kastha is a work of
authority in Mithila, whether its date is about 1360-1370 A.D.
as Dr. Jolly and Mr. Kane would have it or whether it was
written about 1175 A.D. as the Patna High Court holds (m).

id) Kane, 447. The text has been published both in Bombay and
Baroda.

(c) Mithila fepresents the modern districts of Dharbanga, Cham-
paran and North Muzzaffarpur (Hunter, Imperial Gazetteer, Vol. VII,
208).

if) Rutchepathy v. Rajunder (1839) 2 M.I.A., 134, 146; Mt.
Thakur Deyhec v. Rai Baluk (1866) 11 M.I.A., 139, 1745. Baccha
Jha V. Jugmon Jha (1886) 12 Cal., 348, 351; Balwant Singh v. Ram-
kishori (1898) 25 I A., 54, 69, 20 All., 267, 290; Sounndramohan
Sinha V. Harprasad (1926 ) 52 I.A., 418, 5 Pal., 135, 155, Kamla
Prasad v. Murk Manohar (1934) 13 Pat., 550, 570.

(g^) Jolly, L & C, 78; Kane, 405. J. C. Ghose (Vol. II, Introdn.,
xiv and xv) places him in the early part of the 16th century A.D.

(A) Setlur, Part II, 243-274.

(i) The Dayabhaga portion is translated bv Sarkar Sastri; J. C.
Ghose, II, 555-589; Setlur, Part II, 159-242.

ij) Jolly, L & C, 77; Kane, 366.

ik) Two editions of the text have been published by Ramakrishna
Jha and Priyanath Misra of Patna.

(/) Jolly, L & C, 78; Kane, 399.

(m) Jolly, L & C, 78; Kane, 389, for a translation, see Ghose, II,
515-530; Setlur, Part II, 515-541, see also Kamla Prasad v. Murk
Manohar (1934) 13 Pat., 550, 578.

Anantadeva.

Mithila

Authorities.

Vivada-

chintamani.

Ratnakara.

Misarumisra.

Madana-

parijata.

54

soLr«i.f:s> OF Hindu law

[chap, il

Kalpaiaru.

Authorities
in Bengal

Jimutavahana

The Kalpataru of Lakshmidhara which is frequently referred
to in the Sarasvati Vilasa and the Viramitrodaya as well as in
the works of the Mithila school is another authority in that
school and was written about the first half of the twelfth
century in)

28 In Bengal, the Mitakshara and the treatises which
follow it give plate to the Davahhaga of Jimutavahana on all
matters on which thev disagiee That celebrated treatise (o)
is the starting point in Bengal just as the Mitakshaia is
elsewhere. The school of thought which Vijnanesvara sought
so elaborately to lefute found a powerful exponent in Jimuta-
vahana Di Jolly savs it is one of the most striking
compositions in the whole department of Indian Jurisprudence.
It IS certainly remarkable for its logic, lucidity and power.
The Davahhaga has been lianslated into English by Mr.
Colebrooke. Di. Jolly places Jimutavahana in the 15th
century (p). According to Golapchandra Sarkar Sastri and
Mr. Panchanan Ghose, Jimutavahana was a ministei of
Vishvaksena, a King of Bengal, both place him with reference
to another work of his called Kalaviveka towards the end of
the 11th centuiy oi the beginning of the 12th century (^).
Mr. Kane, while agreeing with Sarkai Saslii as to the date, does
not accept the tradition as to his descent and position (/ ) But
though the current tiadition may be wrong in its date and
details, there can be little doubt that he must have been a
jurist or minister of great influence in the Court of a Bengal
luler Jimutavahana quotes the commentaiy of Govindaraja
whose date is the 12th centuiy ( 5 ) . two geneiations at
least must separate them!/) Chandesvaia, • the author of

( ;7 ) 1 & ( , 74. Kdn«* H7, for a translation, see Chose, HL

11, 483-502 The views of 1 akshmidhara are summarised in Sarasvati
Vildsa, §§ 627-709,

io) Joll>, TLL, 21

ip) Jolly, L & C, 79, 1 L L, 22

iq) It appears to contain some astronomical details of 1092 AD

See an artule h> Mr Panchanan Ghose in 26 CLJ (Journal), 17
J C Ghose says that he was an ordinary Bengal Brahmin who lived
m the beginning of the 15th century (Vol I, Inlrodn , XVI ) For
the two views of Mookerjee J , see Rajaninath v Chiinder

(1921) 48 Gal, 643, 687, FB, where the date is stated as eleventh
century and Pitarnber v Nnhikant (1919) 24 C.W N., 215, 218, where
It IS stated as the 14th century

( 7 ) Kane, 326

( 5 ) Jolly, L & G, 67, accoiding to Kane, Govindaraja’s date is
between 10.50 A.D and 1100 AD or 1140 AD. (Kane, 315).

U) Kane, t326

iPARA. 28.]

THE COMMENTATORS.

55

the Vivada Ratnakara (1314 A.D.) refers {u) to Halayudha
(c. 1100 A.D.) and Kullukabhatta (c. 1250 A.D.), both
Bengal writers, as well as to the Mitakshara, the Prakasa, the
Parijata, the Kalpataru, Medhatithi and Visvarupa, but does
not refer to Jimutavahana who must therefore have been his
contemporary or lived a little earlier. For, Sulapani (1375
to 1460 A.D.) quotes Jimutavahana’s Kalaviveka and it may
be taken that two generations at least separated them.

The fact that no writer on Dharmasastras, including Bengal
writers, of the 12th and the 13th centuries refer to him appears
to outweigh the prima facie inference that is drawn from the
Kalaviveka.

It is safer therefore to assign the composition of the
Dayabhaga of Jimutavahana to the 13th century which would
agree with Dr. Jolly’s earlier estimate in his Tagore Law
Lectures (v).

The Dayabhaga has been the subject of several comment- Dayabhaga
aries. The names of Acharya Chudan^ni. of Achyuta, Commentaries.
Maheswara and Sri Krishna Tarkalankara are referred to in
Mr. Colebrooke’s preface to the Dayabhaga. Many portions
of the’ Dayabhaga are supposed to be a refutation of the
Mitakshaia. Jimutavahana’s authoritv must have been
paramount as no attempt seems ever to have been made to
question his views except in minute details.

The Dayalatva of Raghunandana who lived in the 16th Dayatatva
century is another work of authority in the Bengal School.

The Dayatatva as well as the V yavaharatatva form pait of his
encyclopaedic work Smrititatva, and it closely follows the
Dayabhaga (/c>. Raghunandana. unlike Jimutavahana. refeis*
to the Mitakshaia and with a view to leconcile both the
systems, holds that succession is to be determined as well
by proximity of birth as by religious efficacy (?e^). His
work has been translated by Golapchandra Sarkar Sastri (x).

The Dayakiamasangraha is the work of* Sri Krishna Davakrama-
Tarkalankara A translation of it was published in 1818 by sangraha
Mr. Wynch (y). It follows and develops the views of the
Dayabhaga.

(w) Kane, 369

(v) Tolly, T L L , 22. The Dayabhaga is only a part of his larger
work, Dharmaratna. Jolly, L & C, 79. He wrote also Vyavahara-
matrka.

(w) Kane, 417

(u;^) Dayatatva, XI, 63 (Setlur’s trans., 513).

(^) Selhir, Part II, 469-514.

<y) Setlur, Part II, 109-158.

56

SOURCES OF HINDU LAW.

[chap. H,

Works on
Adoption

Dattaka

Mimamsa.

Dattaka

Chandnka.

§ 29. The Dattaka Mimamsa and the Dattaka Chandrika
are two special works on adoption. Nandapandita, the author
of the former has also written commentaries both on the
Mitakshara as well as on the Institutes of Vishnu which latter
work is called the Vaijayanti. His commentary on the
Mitakshara is available only in fragments but his Vaijayanti
has been used by Dr. Jolly in editing the Institutes of
Vishnu (rM. The Vaijayanti is one of the leading authorities
in the Benares school ( 2 ) and has been recently relied upon
by the Privy Council m Buddha Singh’s case (a) . Both
the Dattaka Mimamsa and the Dattaka Chandrika were
translated veiy eailv by Mr. Sutherland {b) The Dattaka
Chandrika purports to be written by one Kubera, a Bengal
author Shyama Charan Sarkar, m his Vyavasthachandiika (c)
refers to the tradition among Bengal pandits that it was really
written by Raghumani Vidyabhushana, the spiritual adviser of
the Rdja of Nuddea and a distinguished pandit who flourished
in the latter half of Jagannatha’s life, and who is also said to
have assisted Mr. Colebrooke in the preparation of his
translations of the Dayabhaga and the Mitakshara (d). Mr.
Sutherland in his translation substituted on his own responsi-
bility the name Devanandabhatta, the author of the Smriti-
chandrika, for Kubera which occurred in the manuscripts he
was translating. It is established, beyond dispute, that it is
not the work of Devanandabhatta {d^) , Mr. W. H. MacNaghten
says of both the works (e) : “In questions relating to the law
of adoption, the Dattaka Mimamsa and the Dattaka Chandrika
are equally respected all over India; and where they differ,
the doctrine of the latter is adhered to m Bengal and by the
Southern jurists while the former is held to be the infallible
guide in the provinces of Mithila and Benares”. This statement

(y^) Jolly, L & C, 83, Kane, 423.

(z) Jogdamba Koer v Secretary of State (1889) 16 Cal, 367, 372.

(а) Buddha Singh v. Laltusingh (1915) 42 I.A., 208, 222, 37 Ally
604

(б) For translations see Ghose, H L. Vol III, Setlur, Part I,
355-449.

(c) Preface to Vol. I, xxi.

{d) The tradition cannot be true as Shyama Charan Sarkar’s
statement that the Dattaka Chandrika was believed to be the basis of
Nandapandita’s more elaborate work is inconsistent with it, as Nanda-
pandita wrote his work m the 17th century. Mr Mandlik holds it
to be the work of Bhatta Kubera, a Bengali writer.

(di) Mandhk, 516, Jolly, T.L.L , 22.

(e) W. MacN., Preface, xxiii and p. 74.

PARAS. 29 & 30.]

THE COMMENTATORS.

57

was accepted by the Judicial Committee in the Rarnnad case(f'l .
The controversy as to the authority of the two works, has been
settled by the Privy Council in two cases. “Their Lordships
cannot concur with Knox J. in saying that their authority is
open to examination, explanation, criticism, adoption, or
rejection like any scientific treatises on European Jurispru-
dence. Such treatment would not allow for the effect which
long acceptance of written opinions has upon social customs,
and it would probably disturb recognised law and settled
ai rangements. But so far as saying that caution is required
in accepting their glosses where they deviate from or add to
the Smritis, their Lordships are prepared Jo concur with the
learned Judge” (g) . “Both works must be accepted as bearing
high authority for so long a time that they have become
embedded in the general law” (A).

§ 30. The Nirnaya Sindhu of Kamalakara Bhatta
(1610-1640 A.D.)*is an authority on religious and ceremonial
law and is referred to more or less in all«the schools. It
enumerates the persons entitled to offer sraddha and states
their order, incidentally throwing light on questions of
succession (i) . It is not only followed in Bombay, Benares
and Bihar (y) but also in Southern India, particularly in the
Andhra country (A;). The Vivadatandava of Kamalakara has
also been frequently referred to and is an authority of the
Benares School on questions of succession (/). The Dharma-
sindhu of Kasinath (c. 1790 A.D.) is a work of repute in the
Benares School and its authority on ceremonial matters is held

(/) The Collector of Madura v Mootoo Ramalinga (1868) 12

M.I.A., 397 at p. 437; see also Rungamma v. Atchamma (1846) 4
M.I.A., 1, 27.

ig) Sri Balusu^s case (1899) 26 I.A., 113, 132, 22 Mad., 398, 21
AIL, 460.

(h) Bhagwan Singh v. Bhagwan Singh (1899) 26 I. A., 153, 161,
21 All., 412; see also Perrazu v. Subbarayudu (1921) 48 I.A., 280,
44 Mad., 656, 667.

U) W & B, 2nd edn, 11; Sarvadhikari, 2nd edn., %, 310, 311;
Kane, 437. Gopal Narhar Saffray v. Hanmanth Ganesh (1879) 3 Bom.,
273, 281; Kushal Chand Lalchand v. Bai Mam (1887) 11 Bom., 247,
254; Sakaram Narayan v. Balakrishna (1925) 49 Bom., 739, 757.

(i) Ananda Bibi v. Nownit Lai (1883) 9 Cal., 315, 324.

(k) Pedda Ramireddi v. Gangireddi (1925) 48 Mad., 722, 737;
Viswasundara Row v. Somasundara Row (1920) 43 Mad., 876, 892.

(/) Sarvadhikari, 2nd edn, 314; for a translation, see J. C. Chose,
II, 1129 to 1145. Dwarka Nath Roy v. Sarat Chandra (1912) 39 Cal.,
319, 331, 332. The Sudra Kamalakara by the same author is a standard
treatise on the different religious ceremonies of the Sudras? Kane, 435.

Other

Authoiities.

Nirnaya

Sindhu

Dharma-

sindhii.

58

SOURCES OF HINDU LAW.

[chap, n.

Southern

works.

Halhed

Jagannatlia

Shyama

Charan

Sarkar

Only two
mam schools
of law

in high respect {m). The Smriti-Muktapala of Vaidya-
natha Dikshita already referred to and the Suddhi
Vilochana of Tholappa are authorities specially on ceremonial
matters and are frequently consulted in the Tamil Districts (n) .

•§ 31. Halhed’s Gentoo Code, the translation of the

Vivadarnavaselhu, compiled at the request of Warren Hastings
IS of no value. Of great value is the Vivadabhaiigarnava
compiled at the instance of Sir William Jones by Jagannatha
Tarkapanchanana and translated by Mr. Colebrooke who was
not only a great Sanskrit scholar but a great Sanskrit

lawyer. It is generally spoken of as Jagannatha’s

or Colebrooke's ‘ Digest. Mr. Colebrooke himself criti-
cised the Digest as discussing together the discoidant
opinions without distinguishing which of them is the

received doctrine of each school or whether any of them
actually prevailed at present. On the other hand Mr. Justice
Mookerjee observes* ‘"there can be no question as to the weight
to be attache(|j to an opinion expressed by Jagannatha
Tarkapanchanana who, as stated by Dwaraka Nath Mitter, J.,
in Kern Kolitani \. Moniram Kolita (13 B L.R. 1, 49), was
one of the most learned pandits that Bengal had ever produced
and whose authority on questions of Hindu law ranks only
next to Jimutavahana, Raghunandana and Sri Krishna” (o).
As a repertorv of ancient texts, it is simply invaluable.

The Vyavasthd Chandrika and the Vyavastha Darpana are
two digests of Hindu Law, the former of the Mitakshara and
the latter of the Dayabhaga School by Vidya Bushana Shyama
Charan Sarkai who occupied for sometime the chair of Tagore
Law Piofessor in the Calcutta University. ‘They have been
referred to occasionally as works of some authority (p).

S 32. The term ‘school of law’ as applied to the different
legal opinions prevalent in different parts of India seems to

(m) Kane, 464, (1920) 43 Mad, 876, 892, supra, (1925) 48 Mad,
722, 736, supra

in) Vaiydinatha v Appu (1886) 9 Mad, 44, 49, (1920) 43 Mad,
876, 892, supra, Ganapathi Iyer, 214

(o) Retki V Luchpat (1914) 20 C W.N , 19, 23, Kern Kolitani v
Momram 13 Beng LR, 1, 49, 19 WR, 394 where similar high praise
IS given

ip) Bhola Nath Roy v Rakhal Dass (1884) 11 Cal., 69, 71; Bat
Kesserbfii v Hunsraj Morarji (1906) 33 I A , 176, 30 Bom, 431, 447,
Ramchandra Marthand v Vinayak V Kothekar (1914) 41 I A, 290,
300, 42 Cal., 384, Buddhasingh v Laltusingh (1915) 42 I A , 208, 222,
37 All , 604, for the earlier view see Akhoychunder Bagcchi v.
Kalapahar (1855) 12 I A., 198, 12 Cal., 406, 413, where the Privy
Council refers to it though not as an authority.

PARA. 32.]

SCHOOLS OF LAW.

have originated with Mr. Colebrooke (q). There are in fact
only two main schools, the Mitakshara and the Dayabhaga.
Undoubtedly, there are fundamental differences of doctrine
between the Mitakshara and the Dayabhaga schools. Any
one who compares the Dayabhaga with the Mitakshaia will
observe that the two works differ in the most vital points,
and that they do so from the conscious application of com-
pletely different principles (r). These will be discussed later
in their appiopriate places, but may be shortly summarised
here

First, the Dayabhaga lays down the principle ol leligious
efficacv as the ruling canon in determinihg the order of
succession, consequently it rejects the preference of agnates
to cognates, which distinguishes the other system, and arranges
and limits the cognates upon principles peculiar to itself.

Secondly: it wholly denies the doctiine that property is by
birth, which is the corner-stone of the joint family system.
Hence it treats the fathei as the absolute owner t)f the property,
and authorises him to dispose of it at his pleasure. It also
refuses to recognise any right in the son to a partition during
his father’s life.

Thirdly: it considers the brothers, or other collateral
members of the joint family, as holding their shares in quasi-
severalty, and consequently recognises their right to dispose of
them at their pleasure, while still undivided.

Fourthly: whether, as a result of the last principle, or upon
independent grounds, it recognises the right of a widow in an
undivided family •to succeed to hei husband’s share if he dies
without issue, and to enforce a partition on her own account

From the earliest times, iheie have been two (onflicting
principles of law, one favouring the perpetual integrity and
the hxed succession of family property and the other, the free
use of such property for the circumstances of the day ( 5 ).
From the Mitakshara itself, it is evident that these two schools
of thought existed even before Vijnanesvara wrote it. One
school represented by the author of the Smritisangraha and
Dharesvara (Bhoja) held that ownership arose from the dictates

iq) 1 Stra. H.L., 315. As to the mode m which such divergencie>^
sprang up, see the remarks of the Judicial Committee in the Ramnad
case (1868) 12 M.I.A., 397, 435.

(r) This 18 quoted by Mahmood J. in Gangasahai v. Lekhraj Singh
<1887) 9 All., 253, 292.

( 5 ) Per Lord Hobhouse in Rao Balwantsmgh v. Rani Kishori
<1898) 25 I.A., 54, 71, 21 All., 412.

Salient
points of
difference.

Their

probable

origin

60

SOURCES OF HINDU LAW.

[chap, ir,

of the sastras, that the son had no pre-existing ownership and
that partition alone was the cause of ownership (/) . The
other school represented by Visvarupa and Medhatithu who
lived long before Vijnanesvara held that sons had an equal
right before partition in ancestral property and that partition
was on the basis of an existing right [u) , Vijnanesvara’s
original definition of sapindaship, however, stands on a
different footing. It was a distinct departure from the earlier
theory of sapindaship as being ‘community of funeral
oblations’ (i;) ; for, Visvarupa and Medhatithi, define sapinda
1 elation only in terms of pinda offerings. The Davabhaga
exposition of sapinda relation followed the earlier orthodox
view to Its logical completeness.

bub-divisions
of the
Mitakshara
School

No scientific
basis

It IS usual to subdivide the Mitakshara school of Hindu
law into four schools itv) namely the Benares, the Mithila,
the Maharashtra, and the Dravida schools. The subdivision
was once carried even to the extent of dMiding the Dravida
into a Tami], a Karnataka and an Andhra school
for which there was no justification (x). The variances
between the subdivisions of the Mitakshara school are com-
paratively few and slight. Except in respect of the
Maharashtra school, this division serves no useful purpose
nor does it rest upon any true or scientific basis. It
is to a certain extent misleading as it conceals the fundamental
identity of doctrine between the so-called Mithila, Benares,
Maharashtra and Dravida schools and suggests that there
are more differences than do really exist.

One reason which used to be given for this division
is that “the glosses and commentaries upon the
Mitakshara are received by some of the schools but are
not received by all” (y). At a time when the opinions of

it) On the authority of the texts of Manu (IX, 104) and Narada

(XIII, 15) •

iu) On the authority of the texts of Brih , XXV, 2, 3, Yajn., II,.
121, Vishnu, XVII, 2, Visvarupa, 244 (Triv ed ) Medhatithi on Manu
IX, 209 (Jha Vol. V, 173) is not quite definite

(i;) This IS the view of Nilakantha in his bamskara Mayukha as-
seen from the passage translated in Lallubhai v. Mankuvarbai (1878)
2 Bom., 388, 418, 425, 426.

(u;) Bhugwandeen Doobey v Myna Baee (1867) 11 M.I A , 487,
507, 508. The Ramnad case (1868) 12 MIA, 397, 435.

(jc) 1, Mor. Digest, Introdn , 221, the Ramnad case 2 M H.C ,
206, (1868) 12 MIA, 397, ^5, Narasammal v Baloramacharlu

(1868) 1 M.HC, 420.

(y) Collector of Madura v Mootoo Ramahnga Sethupathy (1868)
12 M.I. A , 397, 436. See the remarks of Mahmood, J., in Gangai
Sahai V hekhraj Singh (1887) 9 All , 2.53, 291, 292.

PARA. 32 .]

SCHOOLS OF LAW.

61

pandits who were only conversant with a few text-books in each
province guided the decisions of Courts, it was natural to
assume that the text books they most frequently referred to
were the special authorities in particular provinces. With
much wider knowledge and far greater attention to Sanskrit
law books, it is clear that the assumption then made is no
longer correct (y^). The commentaries that generally follow
the Mitakshara are not the particular property of any one
school. They have been and can be cited in all the schools.
The Smritichandrika and the Parasara Madhaviya are referred
to in the northern treatises (y^) as well as in the Mayukha.
The Viramitrodaya, which follows the Mitakshara more closely
than other treatises and is fuller than others, is referred to
in all the schools. The Subodhini of Visvesvarabhatta is
referred to not only in the Benares but also in the Dravida
school. The Kalpataru and the Madanaparijata are referred
to in the Benares and the Mithila schools and also in the
Sarasvati Vilasa. • The references in the Digests and the Com-
mentaries to one another clearly show that al^the treatises are
the common property of all the schools.

Another reason given for this division into schools
is that the commentaries in a particular province which
follow the Mitakshara put a particular gloss on it
and are agreed upon it among themselves. This is
hardly correct. To take the so-called Dravida school,
for instance, the Smritichandrika, far from putting a particular
interpretation upon the Mitakshara, expressly differs from it
on some essential points and agrees more with the northern
treatises, though its views on other points have been followed.
While the Mitakshara prefers the mother to the father as heir,
the Smritichandrika prefers the father to the mother. Differing
from the Mitakshara, it says that a childless widow inherits
only to the movable property of her husband and not to his
immovable property (2) . It excludes the barren daughter from
inheritance on the ground that she confers no spiritual benefit.
According to it, a father’s mother inherits before the brother of
the deceased (a) and after quoting the Mitakshara, it expressly
differs from it on the definition of gotrajas. The heirs to
stridhana are given quite differently in the Smritichandrika

(yi) In Ramchandras case (1914) 41 I.A., 290, 42 Cal., 384,
and Buddhasingh*s case (1915) 42 I.A., 208, 37 All., 604, the
authorities of all the schools were examined to settle questions of
Hindu law which are necessarily common to all the schools

(y2) Particularly in the Viramitrodaya, a leading Benares
authority.

(z) Smritichandrika XI, i, 27.

(a) lb., XI, IV. 16-17.

62

SOURCES OF HINDU LAW.

[chap. II,

and its views on that matter have not been accepted in Madras.
Its definition of sapinda relationship as community through
pinda oblations diretllv contradicts the Mitakshara Accord-
ing to the Farasara Madhavivam, both the parents take the
inheritance togethei . it defines sapinda relation both as parti-
cipation in the same pinda offering and as ( onnection with the
same body While the Virainitrodava and the iVladanapanjata
not only follow the Mitakshaia more closeK but accept its
doctiiiies and diffei less from it, it cannot be said that the
Benares authorities aie agreed among themselves or that the
Southern authorities are agieed amongst themselves. It is
therefore clear that the differences are dillereiKes from the
Mitakshara which have generall) not been given effect to in
many cases Thiidly the differences between the Benares,
Mithila(b) and Diavida schools aie now only minor vari-
ations on veiy few points and are due more to the courts in
each piovince giving effect to then own earlier decisions
on the principle of stare decisis or to l4ie differences in
judicial opinion whic'h tend to become minimised both as
a result of the pionouncements of the Privy Council and
otherwise ic)

As regards the right of a widow to adopt a ‘*on to her
deceased husband, there is however a variance in the law of the
different provinces In Mithila no widow can adopt. In
Bengal and Benares, she can with her husband s permission.
In Southern India, and in the Punjab, she (an adopt even
without his permission, by the consent of his sapindas. In
Western India, she can adopt w ithout any ( onsent But this
important diffeience on one point of Hindu law is not sufficient
to justify a division into four s< bools of the Mitakshara
law id ) .

ib) “The law of the Mithila bchool the law of the Mitakshara
except in a very few matters*’ Sourendra Mohan v Han Prasad (1925)
52 I A, 418, 437, 5 Pat, 135, 155.

(c) Indian Legislation, eg. Inheritance (Amendment) Act, 1929
and Hindu Law of Inheritance (Removal of Disabilities) Act, 1928
recognises only two schools Differences due to the special, local,
caste or family usages in any one province are more than the
differences between the so called schools, e g , Punjab Customs.

id) No doubt, writers including Vijnanesvara refer to the
‘^oiitht rners, the Northerners, the Mithila lawyer*? and so on They
refer either to different practices in matters of achara or ritual
and marriage, eg, to different sraddha usagis amongst South-
erners and Northerners (Mit on Yaj , I, 256, Vidyarnava’s trans ,
p 353) When discussing Vyainihara law, they refer compendiously
to the writers in different parts of India, instead of naming them each
time The references to the Ea‘?tern writers stand on a different
footing Dr Sarvadhikari thinks much of this Mibdivision of the
Mitakshara school It is hardly justified.

PARA. 32 .]

MAHARASHTRA SCHOOL.

The case of the Maharashtra school is however different.
The differences between it on the one hand and the three other
schools on the other hand are, though not numerous, suffici-
ently important and can be attributed to a difference in
doctrine in one particular. On the right of females to inherit,
the nature of their estate, and the rules as to the stridhana
and its devolution, it materially differs from the Mitakshara.
Moreover, the interpretation of the Mitakshara is clearly
influenced by the Mayukha and in some places, it is con-
trolled by It. The Maharashtra therefore can fairly be
regarded as a branch of the Mitakshara school.

Maharashtra

School.

CHAPTER III.

Custom

binding.

THE SOURCES OF HINDU LAW.

Custom

§ 33. The third source of Hindu law is Custom (a) . As
has already been pointed out, the Smritis and Digests were
largely based upon customary law (6). On topics and matters
not covered by the Smritis and Commentaries, usage supple-
ments the law laid down in them. But where a custom exists
in derogation of the law laid down in the Smritis, it is none
the less a source of law governing the Hindus. The Smritis
repeatedly insist that customs must be enforced and that
they either override oi supplement the Smriti rules. Manu
declares that it is the duty of a king to decide all cases which
fall under the eighteen titles of Vyavahara or Civil law accord-
ing to the principles drawn from local usages and from the
Institutes of Sacied law (c), and that “a king who knows the
sacred law must inquire into the laws of castes, of districts,
of guilds and ol families and (thus) settle the peculiar law of
each” {(i), Narada, who deals only with Civil law says,
“custom decides everything and overrules the sacred law”
and one of the earliest writers, Asahaya (c. 7th century)
commenting upon that verse cites a text, “immemorial usage
of every country (or province) handed down from generation
to geneiation can never be overruled on the strength of the

(a) Manu, II, 12, Yajn., I, 7
ib) See ante §§ 6, 22
( c) Manu, VIIl, 3

{(i) Manu, VIII, 41 Sir William Jones’s translation of the verse
in Manu, I, 108, that “immemorial usage is transcendent law” which
appeared in former editions of this work and which was cited by
Dr. Sarvadhikrn (II edition, 854) and by Mookerjee J. in Rajani
Nath V Nitai (1921) 48 Cal, 643, 715 F.B and by others is an error.
(Cjanapathi Iyer, 297, Bhattacharya, 2nd edn , 50). The correct trans-
lation IS given by Dr Buhler and Dr Jha “The rule of conduct is
transcendent law whether it be taught in the revealed texts or in the
sacred tradition hence a twiceborn man who possesses regard for
himself should be always careful to follow it” (Dr Buhler, S B E ,
Vol 25, 27) “Morality (right behaviour) is highest dharma, that
which is prescribed in the Sruti and laid down in the Smriti. Hence
the twiceborn person, desiring the welfare of his soul should be
always intent upon right behaviour” (Dr. Jha, Manu Smriti, Vol I,
Part I, 149). The reference is to right behaviour or conduct as laid
down in the Vedas and in the Smritis and not to any customs or usages
of the world Veises 107 to 110 read together establish the correct-
ness of the above translations and have nothing to do with custom or
usa^e in tlie modern sense.

PARA. 33.]

APPROVED USAGE.

IS5

sastras’^ (e). Yajnavalkya also emphasises this view when he
says that *‘one should not practise that which, though ordained
by the Smriti, is condemned by the people” (/). Manu is also
to the same effect: “what may have been practised by the
virtuous, by such twiceborn men as are devoted to the law,
that he shall establish as law, if it be not opposed to the
(customs of) countries, families and castes” (g). Bnhaspati,
who like Narada, is dealing with civil law alone, lays down
•emphatically that “the time honoured institutions of each
country, caste and family should be preserved intact”. He
refers to customs which according to him are contrary to the
Sastras and which nevertheless must not be interfered with,
and after referring to certain customs iri connection with
marriage, etc , which were contrary to the Sastras, he declares
that the men who follow those customs are neither subject to
the rules of penance nor to punishment (h ) . Katyayana
expressly recognises a local custom as valid, whether it is in
consonance with lAw or in derogation of it (i). As referrc^d
to already, usage is expressly declaied to ove,rrule the Smriti
law in the decision of cases, according to the texts of Narada
and Bnhaspati (;). Speaking of a newly subjugated country,
Yajnavalkya says: “whatever the custom, law and usages, those
should be observed and followed by the monarch, as
before” ( A) .

The Sanskrit word for custom which is used by Manu and
Yajnavalkya is Sadachaia or the usage of virtuous men. This
terra has been defined by Manu himself as “the custom handed
down in regular succession since tune immemorial among the
four chief castes {varna) and the mixed races of the
country” (/). Sb sadachara or approved usage only means

(e) JNar., I, 40 and comment S,B E., Vol. XXXIIT, p. 15.

(/) Ydjn, 1, 156.

(g) Manu, VllI, 46 See ali^o IV, 178 “Let him walk m that
path of holy men which hib fathers and his grandfathers followed:
while he walks in that, he will not suffer harm.’" The Mitakshara
cites this as deciding that family usage should be followed. Mil. on
Yajn., I, 254, Vidyarnava, 344.

(h) Brih., II, 28-31. See also Parasara-Madhaviya, Sethir’s ed ,
552-553.

(i) Smritichandrika, Vyavaharakanda, 21, 22 (Mysore edn.) ;

Sankararama Sastri, 149-151, Katyayana says further. The customary
law should be recorded in books and as much care should be taken
in respect of them as in respect of sacred law (Text cited m Note 1
•on page 3 of Jolly’s, L & C). See also the Viramitrodaya, Setlur’s
«d., 370; Vas., I, 17.

(;) Brih., II, 18. S.B.E., Vol. 33, p. 7, note. Narada, I, 40.

(A) Yajn., I, 342-343, Vidyarnava’s trans., 415.

(/) Manu, II, 18.

5

Sadachara.

66

CUSTOMARY LAW.

[chap. IHj

Custom

overrides

Smriti.

that It should not be contrary to Dharma. No doubts
Gautama says: “the laws of countries, castes and families which
are not opposed to the sacred records have also authority” (m) .
Vijnanesvara and Kulluka, commenting respectively on-
Yajnavdlkya and Manu state that the customs should not be
repugnant to the Vedas or the Smrilis (n). On this point,,
there is a difference between the religious and the civil law in
the Smritis and the general requirement that usage should not
be opposed to the Vedas and the Sinntis is confined to the
rules relating to religious observances (achara) and docs not
apply to the rules of Civil Law (vyavahara) as to which, the
texts of Narada, Brihaspati and Katyayana, recognising the
distinction between the two, are decisive (o). All that
Vijnanesvara and Kulluka mean is that lustom should not be
immoral or criminal or opposed to public policy, in which
case, it will cease to be the conduit of virtuous men.

§ 31. While the writers on the Mimarn^a do not recognise
local or tribal customs in respect of religious matteis, local or
tribal customs of a secular nature fall according to them
outside the scope of positive injunctions of universal applica-
tion (/;). Further the requirement that it should not lie
opposed to the Smritis means that it should not be contradicted
by an obligatory text. It is enough if it is not positively
condemned by the Smiitis(g). Theie are veiy few cases in
which express prohibitions in the Smiitis are < ontravened by a
custom. In most of those cases, the prohibitions themselves
are not imperative, but are only nionitorv Positive rules of
succession which are varied by custom cannot be lead as j)io-
hibitions jireventing a different rule from being established by
custom In any event, it is clear that any ’condemnation m
the Smritis, express or implied, will not affect the validitv of
custom as a matter of Civil Law (/) The exact legal position-
of custom as itself a rule of Smriti which has been emphatically

(m) Gaut , XI, 20

(n) Mil on Yajn , T, 312, 343, Viciyarnava’s trans., 415, Kulluka
on Manu, VllI, 41, “The Digest (Mitakshara) subordinates in inoie
than one place the language of texts to custom and approved usage'^
per Sir Robert Phillimore in Bhyah Ram Singh v Bhyah Jjgur Singh
(1870) 13 MIA, 373, 390

(o) Brih , 11, 18, 28, Nar , I, 40, for Katyayana’s verses see note
(fl) to § 9 ante

ip) K. L Sarkar, Mimamsa, 258; Jha, Mimamsa Sutras, 80-84.

iq) K, L Sarkar, Mimamsa, 247-248, Colebrooke’s Misc Essays,
p. 338 Compare Jaimmi’s rule “Without reference to causes, usages,
prevail,” K. L. Sarkar, Mimamsa, 444.

(r) P. N. Sen, 10.

PARAS. 34 & 35.] LOCAL CUSTOMS.

67

laid down by Medhatithi, the commentator of Manu ( 5 ), is
almost conclusive on this question. And the Mitakshara
quotes texts to the effect that even practices expressly inculcated
by the sacred ordinances may become obsolete and should be
abandoned if opposed to public opinion (^).

§ 35. The fullest effect is given to custom both by
Courts and by legislation. The Judicial Committee in the
Ramnad case said: “Under the Hindu system of law, clear
proof of usage will outweigh the written text of the law” (u).
And all the Acts which provide for the administration of the
law dictate a similar reference to usage, unless it is contrary
to justice, equity or good conscience, or ‘has been actually
declared to be void (t;). Customs are of various descriptions:
customs of castes, tubes and classes, local or territorial customs
and customs of families {iv) .

There is no c^imprehensive digest of all local or tribal
customs prevailing 111 different parts of India, prepared and
published under authority. Records of liftiited scope are,
however, available. In the Punjab and in the United Pro-
vinces, most valuable records of village and tribal customs,
relating to the succession to, and disposition of, land have
been collected under the authority of the settlement officers, and
these have been brought into relation with the judicial system
by an enactment that the entries contained in them should be
presumed to be true (jr). For instance, the Riwajiam is a

(s) ^tedlialithi on Manu, II, 10, Jha, Vol. I, Part I, 211-212;
(Prattices of cubgired men should also be taken as included under
the teim Snirili) , Jsankaraiaina Saslij, 146-147.

(/) Mil., I, HI, 4, Mandhk, Introdii., 43, 70, The text referred to
in the Mitakshara is the text of Yajnavalkya, 1, 156. The remark in
the note (at pajse 382, Stokes, ll.L B ) that it is not found in
Yajnavalkya Smiili, is incorrect.

(u) Collector of Maduia v. Mootoo Ramalinga (1868) 12 M.I.A.,
397, 436; Palatuappa Chetti v. Alagan Chetti (1921) 48 I.A., 539,
547, 44 Mad, 740; Shtbaprasad v Prayag Kuman (1932) 59 I.A., 331,
332, 59 Cal , 1399, 1421.

{v) See, as to Bombay, Bom. Reg. IV of 1827, s. 26; Act II of
1864, s. 15. As to Burma, Act XV 11 of 1875, 5. Central Provinces,

Act XX of 1875, s 5. Madras Act III of 1873, s. 16. Oudh, Act
XVIII of 1876, s. 3 Punjab, Act XII of 1878, s. 1. See Siindar v.
Khunian Singh (1879) 1 All, 613.

iw) Manu, VIll, 3, 41 ; Yajn., II, 192 (the same law prevads in
the case of usages of Srcnis, Naigamas, Pakhandins and Ganas) ;
Brih., II, 28.

(a;) These records are known by the terms, Wajib-ul-arz (a written
representation or petition) and Riwazi-i-am (common practice or
custom). See Punjab Customs, 19; Act XXXIII of 1871, s. 61; XVII
of 1876, s. 17. Lekraj Kiiar v. Mahpal Singh (1880)^7 I.A., 63,

Recognized
by modern
law.

Records of
local customs.

68

LOCAL CUSTOMS.

[chap. III.

public record prepared by a public officer in the discharge of
his duties under Government rules and is admissible to prove
the facts entered therein, subject to rebuttal The statements
therein may be accepted, even if unsuppoited by instances.
Manuals of customary law, in accordance with the Riwajiam
have been issued by authoiitv foi each district and stand on
much the same footing as the Riwajiam itself (y) Reference
may also be made to the following works* Steele’s ‘Law of
Castes and Tribes in the Dekhan’. C L Tuppei’s ‘Punjab
Customary Law" ( 1881 ); C Boulnois and W. H. Rattigan’s
‘iNotes on the Customaiy Law' of the Punjab’, Bolster’s ‘Cus-
tomaiy Law of the Lahoie Distiicl’. The distiict manuals
and the census lepoits of the seveial piovinces contain
uselul infoimation on the usages and customs, especially of
aboiiginal and othei tube's in the \aii()us parts of India, for
instance, E Thuiston's ‘Caste's and Tubes of Southern
India’, Nelson's Madina Manual, Logan’s Malabar Manual,
Dt. Maclean's ‘Manual of the Adniinistiation of the
Madias Pic'sideno’, Risley's ‘Tubes and Castes in Bengal’,
(]rc)oke's ‘Tubes and Castes ol the North Western Prc>\inces
and Ouclli' But, as these books were compiled foi different
puiposes and upon infoimation accjuircd in inan> ways and
as theie have been gieat changes amongst the people and their
usages duiing the last fifty \eais. caution mav be required m
taking the statements contained in them as always accurate
or as representing the customs oi usages now^ in force.

S Cal, 744, Harhaj v Gninnni (1880) 2 All, 493, Isri Sing v Ganga,
lb, 876, Tfuihiir Nitcpa! Singh v Joi Singh (1897) 23 I A, 147,
19 All, 1, Muhammiid Imam \ Sardar Hubsain (1899) 23 I A , 161,
26 Cal, 81, Parbuti Kunivar v Chandar (1909) 36 I A , 125, 31 All,
457 In the case of I man Parshad v Gandharp Singh (1888) 14 I A ,
127, 15 Cal, 20, the Judirial (ommittee called attention to a practice
which had grown up in Omlh of allowing the proprietor to enter his
own Mews upon the Wajih iil-arz, whereas it ought to be an official
record of customs, arrived at by the inquiries of an impartial officer

See, too, Tiilshi Ram v Behan hal (1890) 12 All, 328, 335,
Supeninddhivaja Prasad \ Gariiraddhwaja (1893) 15 All, 147. A
W^ajil) ul-arz, which has long stood on record, and been unquestioned
by the paities who would be affected l)> it, is prima facie evidence of
(iistom, though not signed by any landholder in the village Rustam
Ah V Ahbasi (1891) 13 All, 407

(y) Vaishno Ditti v Rameshn (1928) 55 LA, 407, 421, 55 M L J.,
716, 755, Beg v Allah Ditta (1916) 44 I A , 89, 97, 44 Cal, 749, 759,
Ahmed khan v Lhannibibi (1925) 52 LA, 379, 6 Lab, 502 For
\Vajil)-ul-arzes, see Roshan Ah Khan v Ghowdn A^hgar Ah (1930)
57 I A, 29, 5 Luck, 70, Bal Gobind v Badri Prasad (1923) 50 I A ,
196, 45 All , 413 A great deal of interesting information, derived
from the records of the Pondicherry Court has been made available
by the labours of Leon Sorg , Juge President dii Tribunal de Premiere
Instance at- Pondicherry in his works.

PARAS. 35 & 36 .] ESSENTIALS OF CUSTOM.

69

In some partsi of Northern India, particularly in districts
now in the Punjab or adjacent to the Punjab, the strict rules
of the Mitakshara, as recognised by the School of Benares, have
not been followed by some castes, tribes and families of
Flindus, and customs which aie at variance with the law of
the Mitakshara, as recognised by that School, have been
for long consistently followed and acted upon, and when
such customs are established, they, and not the strict rules of
the Mitakshara with which they are at variance, are to be
applied. Such customs relate to a variety of subjects, as for
instance, to widows, adoptions, and the descent of lands and
interests in lands; they are to be found principally amongst
the agriculturist classes, but they are also to be found amongst
classes which are not agricultural

§ 36. The first question is as to the validity of customs
differing from the general Hindu law. A belief in the pro-
priety, or the imperative nature of a particular course of
conduct, pioduces a uniformity of behaviour^in following it;
and a uniformity of behaviour in following a particular course
of conduct produces a belief that it is imperative, or proper,
to do so. When from either cause, or from both causes, a
uniform and persistent usage has moulded the life, and regu-
lated the dealings, of a particular class of the community, it
becomes a custom, which is a part of their personal law (z).
What the law requires before an alleged custom can receive
the recognition of the Court, and so acquire legal force, is
satisfactory proof of usage, so long and invariably acted upon
in practice, as to show that it has, by common cons^ent, been
submitted to as the established governing rule of the particular
family, class, district or country; and the course of practice
upon which the custom rests must not be left in doubt, but be
proved with certainty (a). In Rarnalakshmi v. Sivanantha^

(y^) Ramkishore v. Jainarayan (1921) 48 I.A., 405, *410, 49 Cal., 120.

(z) Thib sentence is referred to by Sargent C. J. in Patel Vandravan
V. Patel Manilal (1892) 16 Bom, 470, 476. See the subject discussed,
Khojah's case. Perry, O.C., 110; Howard v. Pestonji, ib,, 535; Tara
Chand v. Reeb Ram (1866) 3 Mad. H C , 50, 56; Baku Nanajt v.
Sundarabai (1874) 11 Bom. H.C., 249; Mathura v. Esu (1880) 4 Bom.,
545; Savigny. Droit Rom., i, 33-36, 165-175, Introduction to Punjab
Customs. As to the effect of judicial decisions in evidencing a custom,
see Shembhu Nath v. Gayan Chand (1894) 16 All., 379.

(fl) Sivanananja v. Muttu Ramalinga (1866) 3 Mad. H.C., 75, 77;
affirmed on appeal. Sub nominee, Rarnalakshmi v. Sivanantha, the
Oorcad case (1872) 14 M.I.A., 570, 12 B.L.R., 396, 17 W.R., 553.
Approved by the Bombay High Court, Shidhojirav v. Naikojirav (1873)
10 Bom. H.C., 228, 234; see also Bhujangrav v. Malojirav (1868)
5 Bom. H.C. (A.C.J.), 161; Chinnammal v. Varadarajulu (1892) 15
Mad., 307; Sundrabai v. Hanmant (1932) 56 Bom., 2^. t

Evidence of
valid custom

70

ESSENTIALS OF CUSTOM.

[chap. III,

the Judicial Committee observed (b), “Their Lordships are
fully sensible of the importance and justice of giving effect to
long established usages existing in particular districts and
families in India, but it is of the essence of special usages,
modifying the ordinary law of succession, that they should he
ancient and invariable, and it is further essential that they
should he established to he so hv clear and unambiguous
evidence. It is only by means of such evidence that the
Courts can he assured of then existence, and that they possess
the conditions of antiquity and certainty on which alone
their legal title to lecognition depends ” Accordingly, the
Madras High Court, when directing an inquiry as to an alleged
custom in the south of India that Brahmans should adopt their
sistei’s sons, laid it down that. ‘T. The evidence should be
such as to prove the uniformity and continuity of the usage,
and the conviction of those following it that they weie acting
in accordance with law, and this conviction must be inferred
from the evidence, II Evidenc'e of acts of Ihe kind, accjuies-
cence in those acts, dec'isions of Courts, oi even of pancdiayets,
upholding such acts, the statements of experienced and com-
petent iiersoiis of their belief that such acts weie legal and
valid, will all be admissible, but it is obvious that, although
admissible, evidence of this latter kind will be of little weight
if unsupported b) actual examples of the usage asserlecr’(c) .
If a custom is found to have existed at a particular dale within
living inemoiv, it must be taken to have the ordinal \ attnhute

ib) 14 MIA, 585 A long continued prac lice wIik h appears to
have originated from, and to he maintained by, a t^ries of eiroiieous
deci‘*ions cannot be supported as a custom, if the decisions themselves
are ultimately rever^^ed The Tittapiir case, 26 I A, 83, Haniahanta
Das ^ Shamanand (1909) 36 ( al , 590

(6M As to the te^it of anticpiity, see Ambahka Dasi v. Aparna Dasi
(1918) 45 (.al , 835, 858 The (.alcuUd High Court takes either
1773 A D. or 1793 A D as the date for treating a custom which was
then in existence as immemorial, Nolin Behan \ Han Pada AIR.,
1934 (..aJ , 452. In Lhnrithnath Chowdri v. Goureenath (1870) 13
MIA, 542, 549, the expression ‘immemorial’ instead of ‘ancient’ was
used with reference to a family custom. Hindu law recognises usage
beyond 100 years as ‘immemorial’, the Mitakshara on Yajn , II, 27
(Setlur’b edn., 342) says ‘Time within memory is 100 years,’ for, the
Sniti says ‘A man’s life is 100 years’.

(c) Gopalayyan v Raghupatiayyan (1873) 7 Mad. H C , 250, 254
Sec too, per Markby J , Hiranath v Baboo Ram (1872) 9 BLR, 274,
294, 17 WR, 316, Collector of Madura v. Mootoo Ramalinga 12
M.I A , 436, and Hiirpurshad v, Sheo Dayal (1876) 3 I A, 259, 285,
26 W R., 55; Vishnu v Knshnan (1884) 7 Mad, 3, Harnabh v. Mandil
(1900) 27 (iak, 379, Mirabivi v. Vellayanna (1885) 8 Mad, 464, 466:
It must be more than a mere practice and must be consciously accepted
as having the force of law, approved in Abdul Hoosem v. Bibi Sono
<1917) 45 LA, 10, 17, 18, 45 Cal, 450.

PARA. 36 .]

ESSENTIALS OF CUSTOM.

71

of a custom that it is ancient, and may be assumed to have
•existed prior to that date (d).

A custom must be ancient, certain, and reasonable (e), and Antiquity and
being in derogation of the general rules of law, must be
•construed strictly (/) . Customs are not to be enlarged beyond
the usage by parity of reason, since it is the usage that makes
the law and not the reason of the thing. It cannot be said
that a custom is founded upon reason, though an unreasonable
custom is void, for no reason, even the highest whatsoever,
would make a custom or law (g). A' custom may be proved
eithei by actual instances or by general evidence of the
meml^eis of the tribe or family who would /laturally be cogni-
sant of its existence; specific instances need not always be
pioved(/i). But when a custom or usage is repeatedly
brought to the notice of the courts, that custom may be held
to be introduced into the law without the necessity of proof in
each paiticular c^sc (i). Of course, it is easier to prove a

(</} Kumvur Bamnt Singh v. Kumvar Brijraj Singh (1935) 62 LA.,
ISO, 193, 57 All , 494, 508 (where the cubloin was shown to have
existed foi about fifty years) , compare P, F, Chattan Raja v. Rama
Farma (1915) 28 M I.J , 669.

(e) Batharous customs or customs which are repugnant to natural
justice, equity and good conscience arc bad and they cannot be made
good by (ouris modifying them. E Eleko v Officer administering the
Oovt of Nigeria (1931) A.C , 662, 673; Punjab Laws A( t, 1872, s. 5;
N. W. F Province’s Regulations, s. 27, Oudh Laws Act, s 3. A
custom is not unreasonable merely because it is contraiy to a lule of
Jaw oi against the interests of an individual, 10 Halsbury, 2nd edn.,
paras 9-11, see Shih Narain Mookerjee v Bhutnath (1918) 45 Cal.,
475, 479, Saladhiir Jaman v Oojaddin (1936) 63 Cal, 85\ Hashmat
Ah \ Mt Nasibunnissa (1924) 6 Lah , 117 P.C

(/) Hurpnrshiid v Shea Dayal (1876) 3 lA, 259, 285, Luchman
V Akbar (1877) 1 All, 440; Lala v. Hira (1878) 2 AIL, 49.

(g) Arthur v. BoKenham, 11 Modern, 148, 161. 88 E R , 957, 962;
Muharram Ah v Barhat Ah (1930) 12 Lah., 286, 290, Palaniappa
Chetty V Chockalingam Chetty (1929) 57 MLJ., 817, Miithala Reddy
V. Sanharappa (1934) 67 M.L.J., 706 This rule is in accordance with
Hindu law, foi, according to Jaimim’s rule ‘Willvut reference to
causes, usages prevail. K. L. Saikar, Mimamsa, 444, 481.

{h) Ahmad Khan v Channi Bibi (1925) 52 LA, 379, 383, 6 Lah.,
502, affirming A.I R , 1924, Lah. 265, Fashno Ditti v. Rameshri (1928)
55 LA , 407, 421, 55 M L J , 746, 755, Gopikrishna v,Mt Jaggo (1936) 63
LA., 295, 298, 58 AIL, 397 (Sir ShadilaFs observation) , Akbarally v.
Mahomedally (1933) 57 Bom., 551 (mere affidavits — no good), Soban-
Singh V Mt. Narain A.I R., 19.16 Lah., 540; S. K. Wodeyar v. Ganapathy
A.LR 1935 Bom., 371, Shanmugathammal v. Gomathi (1934) 67
M L.J , 861

(i) Rama Rao v. Raja of Pitapur (1918) 45 LA., 148, 154, 41 Mad.,
778; Hemandranath v. Jnanendra (1935) 63 Cal., 155, 161; Effuah
Amissah v. Effuah Krabha A.LR. 1936 P.C., 147, Knshnamoorthy v.
Knshnamoorthy (1927) 54 I A,, 208, 50 Mad, 508; Gireeschandra v.
Rabeen^ranath (1934) 61 Cal., 694; Banarsi Das v. Sumat Prasad
A.LR. 1936 All.. 641.

72

CUSTOMARY LAW.

[chap. Ill,

Immoral

usages.

custom which supplements Hindu law than one which vanes-
it, as in the case of customs governing religious institutions-
or forms of marriage other than those prescribed by Hindu
law (y).

§ 37 Customs which are immoral or opposed to public
policy or opposed to enactments of the legislature will neither
be recognised nor enforced (A) The requirement in the
books that a custom should be the usage of the virtuous and
should not be opposed to the Dhaima&astias means, as alieady
pointed out, that it should not be immoral or opposed to
public interests (/).

Accordingly, caste customs authorising a woman to abandon
her husband, and marry again without Ins consent, are \oid
for immorality (m) And it was doubted whethei a custom
authorising her to marry again during the lifetime of her
husband, and with his consent, would have been valid in) In
Madras, it has been held that there is nothVng immoral in a
custom by whiclv divorce and re-marriage are permissible by
mutual agreement, on repayment by one party to the other of
the expenses of the original marriage (o) But a ( ustoni
peimittmg a Hindu husband to dissolve the marriage without
the consent of the other partv on payment of a sum of money
to be fixed by the caste is bad (/?) So also a custom allow-
ing a woman to re-niarry during her fiist husband’s liielime
without any defined rules by which the marriage of the first
husband is dissolved has been held to be bad iq) But a
custom amongst a certain class of Vaishyas by whiih abandon-

(;) Sheobaran Singh v Kulsunmnnissa (1927) 51 1 A , 204, 49 All,.
367, Chattan Rajah v Rama Varrnah (1915) 28 MLJ, 669.

(A) Vanmakone v Vannuhi (1928) 51 Mad, 1, 10 (F.B,).

(/) Custom should he the custom of the virtuous (Sadachara)
Yajn., I, 7, custom should not be opposed to revealed law, Yajn , II,.
186 See also s ,23, Indian Contract Act As to the test of immorality,.
It must be determined by the sense of the community as a whole and
not by the sense of the section of a community, per Oldfield J in
Daivanayaga v. Muthureddi (1921) 44 Mad, 329, 333. According to-
the Mimamsa rule, customs influenced by an irnpiopei cause or
perverse motive are bad (K L Sarkar, Mimamsa, 240) , ante § 33

(m) R V. Karsan (1864) 2 Bom. H C , 117, at p. 124; see R v..
Manohar (1868) 5 Bom. H C (CC.), 17, Uji v. Hathi (1870) 7 Bonu
H.C. (ACJ), 133, Narayan v. Laving (1878) 2 Bom, 140

(n) Khemkor v. Vmiashankar (1873) 10 Bom. H C., 381, In re
Gedalu Narayana A.I R. 1932 Mad., 561.

(o) Sankaralingam Chetu v. Subban Chetty (1894) 17 Mad , 479*

(p) Keshav v Bai Gandi (1915) 39 Bom., 538

iq) Budansa Rowther v. Fatmabi (1914) 26 M.L.J., 260; Venkata-
krishna v. L^kshniinarayana (1909) 32 Mad., 185

PARA. 37 .]

IMMORAL CUSTOMS.

73

ment or desertion of the wife by her husband dissolves the
marriage tie and enables her to remarry during his lifetime
has been upheld (r). The usage among Nattukottai chetties
by which an adoptive parent pays a sum of money to the
natural parent in consideration of his giving his son in adop-
tion is, just like an agreement to that effect, bad (5). In a
case before the Privy Council, a custom was set up as existing Opposed to
on the West Coast of India, whereby the trustees of a religious P“hhc policy,
institution were allowed to sell their trust. The Judicial
Committee found that no such custom was made out, but inti-
mated that in any case they would have held it to be invalid,
as being opposed to public policy j . •

The custom amongst dancing girls or naikins of adopting Dancing
one or more daughters has been held by the Bombay (a) and
Calcutta (t;) High Courts to be opposed to morality and public
policy. In Madras, such an adoption by a dancing girl for Adoption of
the purpose of prostitution, after the Penal^Code, has been
held to be illegal (m;). In a Muhammadan case (%) the
Privy Council upheld the view that the custom of adoption of
daughters by a prostitute class or family aims at the
continuance of prostitution as a family business and
that it has a distinctly immoral tendency and should
not be enforced in Courts of Justice. These observa-
tions must equally apply to the custom of adoption of
daughters amongst Hindu dancing girls. In Madras, however,
a distinction has been sought to be made between an adoption
made with the intention ol training a girl for the purposes of
prostitution and •one made with a different intention and the
custom, amongst dancing girls, of adoption has so far been
recognised as to make the adoption of a daughter valid, where

(r) Gopikrishna v. Mt, Jaggo (1936) 63 I.A., 295, 302, 58 All., 397
(Vaishyas of Gorakpur).

( 5 ) Murugappa v. Nagappa (1906) 29 Mad, 161, see also

Kothandaramareddi v. Thesu Reddi (1914) 27 416, Danakoti

V. Balasundara (1913) 36 Mad., 19; Subba Raju v. Narayana Raju
<1926) 51 M.L.J., 366.

(^) Rajah Vurmah v. Ravi Vurmaoh (1876) 4 I.A., 76, 1 Mad, 235.

(a) Mathura Naikin v. Esu (1880) 4 Bom., 545; Hira v. Rndha
(1913) 37 Bom., 116; Thara Naikin v. Nana (1890) 14 Bom., 90.

(v) Hencower v. Hanscower 2 Morley’s Digest, 133.

{w) Kamalakshi v. Ramaswami Chetty (1896) 19 Mad., 127.
ix) Ghasito v. IJmrao Jan (1894) 20 I.A., 193, 21 Cah, 149.

74

CUSTOMARY LAW.

[chap, hi,

it is not for the purposes of prostitution (y) . This line of
reasoning ovei looks the essential difference between an illegal
custom and an adoption under a valid custom for an immoral
purpose. To determine the validity of a custom, it must l)e
judged as a whole. It is a single and indivisible custom of
adopting daughters, having its origin in prostitution, by a
class with whom prostitution is admittedly a profession. It
cannot be split up into two customs, a custom of adoption
lor ordinary pui poses and a custom of adoption for immoral
pui poses. As the general, if not invariable, tendency of the
custom IS undoubtedly to promote piostitutioii and to corrupt
youthful and innocent minds, the custom can only be regarded,
on broad grounds, as opposed to morality and public policy,
apart from any criminal intention under the Penal Code or anv
enactment for the suppression of immoral tiafficC^:). An
adoption b) a woman under Hindu law is only to her husband.
An adoption by an unmarried prostitute can hardly be said
to be requiied for religious purposes or for perpetuation of the
line [a] It is *a «ieiious mistake to assume that the practices
of prostitution aie related to worship in Hindu temples merelv
because dancing and singing by piofessional dancers and
singeis are permitted in temples; the lemuneiation from
endowments or otherwise is only lor the service of dancing
and singing (6) .

(>) V enku v Mahalinga (1888) 11 IVIad , 393, 402 See also

Mnthukannu v Paramaswami (1889) 12 Mad, 214, V eeranna v.

baiasiiatnam (1936) 71 MLJ, 53 (where the question is fully dis-
cub&etl) , Balasundaram v Kamakbhi (1936) 71 MLJ., 785, see

Chalakondu v Chalakonda (1864) 2 MHC, 56y^Kanialam v. Sada-
gopa (1878) 1 Mad, 356, Kamalakshi v Kamaswauu (1896) 19 Mad,
127, Sarojini v Jalajakshi (1898) 21 Mad, 229

(z) For instance, the Madras Suppression of Immoral Trafi&c Act
(V of 1930)

(a) See per Sadasiva Aiyar J in Guddattureddi v. Ganapathi
(1912) 23 MLJ, 493 “Prostitution is not looked on by the Hindu
religion or its faws with any more favourable eye than by the Christian
or Mohammedan religion or the Christian or Mohammedan laws” In
Public Prosecutor \ Kannamnial (1913) 24 MLJ, 211, 216, Mr.
Justice Miller said “The view that all that is necessary in the interest
of morality is to leave the minor a viigin till 16 years of age so that
she may then make her choice between prostitution and a decent life,
seems to me to give too little weight to the probable effect of training
and surroundings” But see Visvanatha Mudali v Dorai%wami Mudali
(1925) 48 Mad, 944

(b) The object of the rules (Yajn , II, 292, Narada, VI, 18, Vivad.
Chintamani, 101, Arthasastra, II, 27, Shamasastri, 148) was not to
make that which was immoral, moral; [Manu, IV, 209, 219, IX, 259
(degradation) , “For killing a woman who subsists by harlotry, nothing
at all (no penance).” Cant, XXII, 271. The Arthasastra shows that
prostitutes were slaves of the ancient state, licensed by it, for its profit.
This has bearing on modern Hindu law.

PARAS. 38 & 39.] DISCONTINUANCE OF CUSTOM.

75

§ 38. Continuity is as essential to the validity of a custom
as antiquity. In the case of a widely-spread local custom,
want of continuity would be evidence that it had never had a
legal existence; but it is difficult to imagine that such a custom,
once thoroughly established, should come to a sudden end. It
is different, however, m the case of family usage, which is
founded on the consent of a smaller number of persons.
Therefore, where it appeared that the members of a family
interested in an estate in the nature of a Raj, had for twenty
years dealt with it as joint family property, as if the ordinary
laws of succession governed the descent, the Privy Council held
that any impartible character/ which it had originally possessed
was determined. They said: “Their Lordships cannot find
any principle, or authority, for holding that in point of law
a manner of descent of an ordinary estate, depending solely
on family usage, may not be discontinued, so as to let in the
ordinary law of succession. Such family usages aie in their
nature different frftm a territorial custom which is the lex loci
binding all peisons within the local limits in \yhich it prevails.
It IS of the essence of family usages that they should be
certain, invariable, and continuous; and well established dis-
continuance must be held to destroy them. This would be
«o when the discontinuance has arisen from accidental causes;
and the effect cannot be less when it has been intentional Iv
brought about by the concurrent will of the family. It would
lead to much confusion, and abundant litigation, if the law
attempted to revive and give effect to usages of this kind after
they had been clearly abandoned, and the abandonment had
been, as in this case, long acted upon” (c). But the breach
of a custom in ^a particular instance need not destroy the
custom which may continue to be applicable. Of course,
the onus of proving discontinuance will be upon the person
setting It up ((/).

§ 39. The above cases settle a question, as to which there
was at first some doubt entertained, viz,y whether a particular
family could have a usage differing from the law of the
surrounding district applicable to similar persons (e). In a

(f ) Rajkishen v. Ramjoy (1876) 1 Cal., 186, 19 W.R., 8. See,
also, per cur, Abraham v. Abraham (1863) 9 M.I.A., 195, 243.

(d) Sahabjit v. Indrajit (1905) 27 All., 203; Ekradeswar Singh v.
Janeswari (1915) 42 Cal., 582, 606 P.C., Zanf-un'Nissa v. Shafiq-uz-
zaman 55 I A , 303, 317, 3 Luck., 372; Chundri v. Mt Bibi AIR. 1931
All., 547; Amina Khatun v. Khalilur Rahman (1933) 8 Luck, 445,
A.LR. 1933 Oudh., 246.

(e) See Basavantrav v. Mantappa (1860) 1 Bom. H.C., Appx. 42;

per cur., Tara Chand v. Reeb Ram (1866) 3 M.H.C., 50, 58; Madhav-
rao V. Balkrishna (1867) 4 Bom. H.C. (A.C.J.), 113. •

Discontinuance
of customs.

Family

customs.

76

FAMILY CUSTOMS.

[chap. Ill,

recent case the Privy Council observed: “Custom binding
inheritance in a particular family has long been recognised in
India (See Soorendranath Roy v. Heerarnonee Burmoneah
(1868) 12 Moo. I. A. 91), although such a custom is unknown
to the law of this country, [England], and is foreign to its-
spirit Customs affecting descent in certain areas or customs
affecting rights of inhabitants of a particular district are
perhaps the nearest analogies m this country But in England,
if a custom were alleged as applicable to a particular district,
and the evidence tendered in its support proved that the rights
claimed had been enjoyed by people outside the district, the
custom would fail. This principle, however, it seems to their
Lordships, ought not to be applied in considering such a
custom as the one claimed here, since, if the custom were in
fact well established in one paiticular family, whether it were
enjoyed or no bv another family would not affect the question^
since the custom might be independent in each case, and the
evidence would not cstabli«;h that the custom failed by reason
of the inability to define the exact limits within which it was
to be found when once it was established that within certain
and definite limits, it undoubtedly existed”(/).

But in the case of a single family, and especially a family
of no great importance, there will of course be very great
difficulty in proving that the usage possesses the antiquity and
contmuousness, and arises from the sense of legal necessity as
distinguished fiom conventional arrangement, that are lequired
to make out a binding usage (g). Of course, the custom
observed by one branch of a family is of high evidentiary
value as to the custom in the other branch [h] , Where the
family is a very great one, whose records are capable of being
verified foi a number of generations, the difficulty disappears.
In the case of the Tipperah Raj, usage has been repeatedly
established by which the Raja nominates from amongst the
niembeis of his family the Jobraj (young sovereign) and the
Bara Thakoor (chief lord), of whom the former succeeds to-
the Raj on a demise of the Raja, and the second takes the
place of Jobraj (i) . Also a custom in the Raj of Tirhoot, by
which the Raja in possession abdicates during his lifetime, and

if) Abdul Hussain Khan v. Bibi Sono Dero (1917) 45 I A., 10, 14,.
45 Cal , 450. 460.

(g) Bhau Nanaji v Sundrabai (1874) 11 Bom. H C., 249, 263;
Ismail V. Fidayet (1881) 3 All, 723.

ih) Roshan Ah Khan v. Chowdn Ashgar Ah (1929) 57 I.A., 29,.
36, 5 Luck., 70.

(») NeeHcistodeb v. Beerchunder (1869) 12 M.I.A., 523.

PARA. 39 .]

FAMILY CUSTOMS.

77

assigns the Raj to his eldest son, or nearest male heir (/).
Many of the cases of estates descending by primogeniture
appear to rest on the nature of the estate itself, as being a
sort of sovereignty, which from its constitution is imparti-
ble (A;). But family custom alone will be sufficient, even if
the estate is not of the nature of a Raj, provided it is made
out (/) . And where an impartible Raj has been confiscated
by Government, and then granted out again, either to a
stranger, or to a member of the same family, the presumption
is that it has been granted with its incidents as a Raj, of
which the most piominent are impaitibility and descent bv
primogeniture (m) • This presumption, l^owever, will not
prevail, when the mode of dealing with the Raj after its
confiscation, and the mode of its re-giant are consistent with
an intention that it should for the futiiie possess the oidinary
incidents of partibility (n). Where a family custom is proved
to exist, such a ^ustom supersedes the general Hindu law
which, however, still regulates all beyond the custom (o).

A local custom is one binding on all peisons in the local
area within which it picvails and differs entirely from a family
custom binding only on members of the family, as to rules of
descent and so forth. It is one which must be pleaded with
particulauty as to the local limits of the aiea of which it is

(;) Gunesh v Moheshur (1855) 6 MIA, 164; see the Pachete
Raj, Gurumhinrain v (hiiind 6 S.D , 282 (354) ; a§d. sub nominee,
Aniind v. Dheraj (1850) 5 M LA , 82.

ik) Then* ma>«, liowevei, l)c d pdilible Rdj. See Ghirdharee \
Koolahul (1840) 2 MIA, 344, 6 WR (P.C), 1.

(/) Raiviit Vijiin v Raiinit Ghiinsiam (1851) 5 MIA, 169,

Chowdhry (Ihintamun v Noivlukho (1875) 2 I.A., 263, 24 W.R., 255;
Yarlagadda Mallikarjnna v Durga (1890) 17 I A , 134, 13 Mad, 406,
Thakur Nitopal Singh v Jai Singh (1897) 23 LA., 147, 19 AIL, 1,
Ganirudhwaja v Saparondhwaja (1901) 27 LA., 2^8, 23 All., 37,
Lakshmipali v Kandasamt (1894) 16 Mad., 54, Chandika Baksh v.
Mima Knar (1903) 29 lA, 70, 24 All, 273, Parvati Kunwar v.
Chandra Pal (1909) 36 I A , 125, 31 All , 457.

(m) Beer Pertub v Maharajah Rajender (Hunsapore case) (1867)
12 M.I.A , 1, 9 W.R (PC), 15; Muttu Vaduganatha v Doorasingu
(1881) 8 LA, 99, 3 Mad, 290; Ram Niindun Singh v. Janki Koer
(1902) 29 LA., 178, 29 Cal, 828, Muhammad Afzul Khan v. Ghulam
Kasim (1903) 30 I A, 190, 30 Cal, 843.

in) Venkata \arasimha v. Narayya (Nuzvid case) (1879) 7 I.A.,
38, 2 Mad. 128. Zenrndar of Merangi v. Satrucharla Ramabhadra
(1891) 18 LA , 45, 14 Mad., 237, the Ramnad case (1901) 24 Mad.,
613, 626.

(o) Neel Kisto Deb v. Beer Chundia Thakoor (1869) 12 M.I.A.,
523, Shiha Prasad Singh v Prayag human Debi (1932) 59 I.A., 331,
345, 59 Cal., 1399.

Local

custom.

78

CUSTOMARY LAW.

[chap. Ill,

Custom can-
not be created
bv agreement

Onu*^ of proof
of custom.

alleged to be the custom and the evidence must be the evidence
as to the prevalence of the custom in that area (p) .

§ 40. It follows from the very nature of the case that a
mere agreement among certain persons to adopt a particular
rule cannot create a new custom binding on others, whatever
Its effect may be upon themselves (q) , Nor can a family
custom ever be binding where the family, or estate, to which
it attaches is so modern as to preclude the very idea of im-
memorial usage (/). Noi does a custom, such as that of
primogeniture, which has governed the devolution of an estate
m the hands of a paiticulai family, follow it into the hands
of anothei family' by whom it may have been purchased. In
other wolds, it does not run with the land (5).

S II. Wheie a lube 01 family is admittedly governed by
Hindu law, but asseits the e\istence of a special custom in
deiogalion ot that law, the o/um of cours*' lests upon those
who asseit the (ustoni to make it out (f). For instance, a
custom foi bidding adoption, or hairing inheritance by adop-
tion, might be established, though, in a family otheiwise
subject to Hindu law, it would piobably require very strong
evidence to suppoit it (w). But if the tribe or family had
been originally non-Hmdu, and only adopted Hindu usages in
part, the onus would be shifted, and the burden of proof
would rest upon the side which alleged that any paiticular
doctrine had become part of the peisonal law. A case of this
sort arose in legaid to the Baikantpur family, who were not
originally Hindus, but who had in part, though not entirely,
adopted Hindu customs. On a question of succession, when
the estate was claimed by an adopted son, it was held by the
Judicial Committee that the onus rested upon those who lelied
on the adoption to show that this was one of the Hindu

ip) NaraMin v Niraujan (1923) 51 lA, 37, 60, 61, 3 Pat, 183,
209

{q) per cur ^ Myna Baee v Ootarani (1861) 8 MIA, 400, 420,
Abraham v Abraham <1863) 9 M 1 A 195, 242, Sarupt v Mukhram
(1870) 2 NWP, 227. Bhaom v Mahraj Singh (1881) 3 All., 738,
Muthusivami v Masilamom (1910) 33 Mad, 342

(/•) Umnthnath v Gaureenath (1870) 13 Ml A, 542, 549.

( 5 ) Gopal Doss V Nurotum 7 SD, 195 (230).

(0 Chandika Baksh v Muna Kiiar (1902) 29 I A , 70, 24 All, 273,
Ram Narain v Har Narinjan Kaur (1923) 4 Lab, 297, Bhikabai v.
Manilal (1930) 54 Bom, 780, Sii.ulrabai v Hanmant (1932) 56 Bom,
298, Ladharani v Mt \ iranbai AIR 1932 Lab, 452 (custom of
icversioners excluding; daugbtei^)

(u) Vandraiun Jekisan Manilal (1892) 16 Bom, 470.

PARAS. 41-43.] STATUTORY MODIFICATIONS.

79

customs which had been taken into the family law (v). If
the family was generally governed by Hindu law the
claimant might rely on that, and then the onus of proving a
family custom would be on him who asserted it (?c).

§ 42. Enactments of the legislature declaring, abrogating Statutes,
or modifying rules of Hindu law are an additional and modern
source. They have been an important factor in the develop-
ment of Hindu law. While most of them are in the direction
of reform of Hindu law, some of them supersede Hindu law in
certain class of cases either by different provisions or by the
Indian Succession Act.

§ 43. The Caste Disabilities Removal Act (XXI of 18.50) Caste
which extended the principle of section 9 of Regulation Vll Disabilities
of 1832 of the Bengal Code throughout British India, declared
that “so much of any law or usage now in force within [British
India] as inflicts on any person forfeiture of rights or propeity
or may be held m any way to impair or affect any right of
inheritance, by reason of his or her renouncing, or having been
excluded from the communion of, any religion or being depriv-
ed of caste, shall cease to be enforced as law in the courts of
[British India]”. By this enactment, the legislature virtuallv
set aside the provisions of Hindu law which penalised renuncia-
tion of religion or exclusion from caste. Accoidingly, neither
a convert to Muhammedanism or Christianity nor one deprived
of caste forfeits his existing interest in the joint family
property and both the convert and the outcaste retain their
rights of inheritance to the pioperty of the members of the
family, whether the right accrues before or after the conversion
or the exclusion from caste (.t). The Act applies only to
the actual person who either renounces his religion or has
been deprived of caste but docs not enable his descendants to
claim the benefit of it. The descendants of a Hindu convert
to Muhammedanism cannot claim to inherit to his Hindu
collaterals nor conversely can his Hindu collaterals succeed
to the convert or his descendants (y) . Deprivation of caste

(v) Famndra Deb v. Rajeswar (1885) 12 I A., 72, 11 Cal, 463
{w) Sahdeo Narain v. Kusum Kumari (1922 ) 50 LA , 58, 2 Pat ,
230; see Muhammad Ibiahim v. Sheikh Ibrahim (1922) 49 LA, 119,
45 Mad., 305.

(x) Khunni Lai v. Gobind Krishna (1911) 38 I A., 87, 33 All , 356,
Subbaroya v. Ramaswami (1900) 23 Mad., 171; Ram Pergash v. Mt
Dahan Bibi (1924) 3 Pat., 152.

(y) Mitar Sen v. Maqbul Hasan 57 LA., 313, A I.R. 1930 P.C., 251,
approving Vaithilinga v Aiyadorai (1917) 40 Mad, 1118 and over-
ruling Bhagwant v. Kallu (1889) 11 All., 100; Chidambara v. Ma
Nyein (1928) 6 Rang., 243.

STATUTORY MODIFICATIONS.

[chap. Ill,

80

Hindu

Widows*

Remarnape

Act.

Special

Marriage

Act.

on other grounds than change of religion or exclusion from
Hindu religion is also relieved against by the Act (z) . The
Act does not enlarge the rights of the convert in his family
property or get rid of any condition or restriction to which
they were originally subject (a).

§ 44 The Hindu Widows’ Remarriage Act (XV of 1856)
js an enabling Act which was passed to give effect to the views
of a reforming section of Hindus, according to whom
re-marriage of widows was in accordance with the true inter-
pretation of the precepts of Hindu religion The Act legalises
the re-marriage of Hindu widows and declares the issue of
such re-inaiiidge ^o be legitimate (s 1) Section 2 runs:
“All rights and interests which any widow may have in her
deceased husband’s properly by way of maintenance, or by
inheritaiue to hex husband or to his lineal suc’cessors, or by
virtue of any will or testamentary disposition conferring upon
hei, without expiess peimission to ie-niarr,v, only a limited
interest in such property, with no power of alienating the same,
shall upon her re-marriage cease and determine as if she had
then died ; and the next heirs of her deceased husband, or other
persons entitled to the properly on her death, shall thereupon
succeed to the same”, bection 5 provides for the guardianship
of the childicii of the deceased husband on the re-marriage
of the widow. Section 4 piovides that nothing m the Act
shall render any childless widow capable of inheriting if she
had no such rights under ordinary Hindu law. Section 5
saves the rights of the widow on re-marriage and runs “Exc ept
as in the three preeedmg sections is piovided, a widow shall
not, by reason of her re-marnage foifeit any pioperty oi any
right to which she would otherwise be entitled, and every
widow who has le-married shall have the same rights of
inheritance as she would have had, had such marriage been
her first marriage”. The provisions of this Act have given
rise to conflicting views on several mailers and they will be
dealt with in a subsequent chaptei

§ 45. The Special Marriage Act (III of 1872) provides
for a civil marriage before a Registrar (1) between persons
neither of whom professes the Christian, Jewish, Hindu,
Muhammedan, Parsi, Buddhist, Sikh or Jama religion and (2)

(z) Subbaraya v Ramaswami (1900) 23 Mad, 171, 174; Vedammal
V. Vedanayaga (1908) 31 Mad, 100, Honamma v. Timanna Bhat
(1877) 1 Bom, 559, Bhujjanlal v. Gya Fershad (1870) 2 N.W.P.,
446 But see Nalinaksha v. Rajamkant (1931) 58 Cal., 1392, 1398.

(a) Matungim v. Ram Rutton (1892)19 Cal, 289, 291 F.B.;
Pathumma Raman Nambiar (1921) 44 Mad, 891.

PARA. 45.]

STATUTORY MODIFICATIONS.

8i

between persons who profess the Hindu, Buddhist, Sikh or
Jaina religion. The marriage may be solemnised in any form,
provided that each party says in the presence of the other and
hearing of the Registrar and witnesses, “I (A) take thee (B) to
be my lawful wife (or husband)” ( s. 11). Before the
marriage is solemnised, the bridegroom and the bride have to
make declarations in the prescribed form (s. 10). All
restrictions on marriage, imposed by law or custom, are
removed except as regards certain prohibited degrees of
•consanguinity or affinity (6). A marriage solemnised under
ihe Act is subject to the provisions of the Indian Divorce Act
(s. 17). The Act, as it originally stood, only enabled Hindus
4.0 make a declaration that they did not profess the Hindu
religion and to marry in accordance with it. After its amend-
ment in 1923, the Act also enables persons who profess to be
Hindus m their declaration to marry under it. The important
provisions are: — ^The marriage under this Act of any member
of an undivided ftamily who professes the Hindu, Buddhist,
Sikh or Jaina religion shall be deemed to effect his severance
from such family (s. 22) . A person professing the Hindu,
Buddhist, Sikh or Jaina religion who marries under this Act
shall have the same rights and be subject to the same disabili-
ties in regard to any right of succession to any property as a
person to whom the Caste Disabilities Removal Act, 1850,
applies: Provided that nothing in the section shall confer on
any person any right to any religious office or service, or to
the management of any religious or charitable trust (s. 23).
Succession to the property of any person professing the Hindu,
Buddhist, Sikh or Jaina religion, who marries under this Act,
and to the property of the issue of such marriage, ''shall be
regulated by the provisions of the Indian Succession Act, 1865
( s. 24) . No person professing the Hindu, Buddhist, Sikh or

Jaina religion who marries under this Act shall have any right
■of adoption (s. 25). When a person professing the Hindu,
Buddhist, Sikh or Jaina religion marries under, this Act, his
father shall, if he has no other son living, have the right to
adopt another person as a son under the law to which he is
subject (s. 26). Before the amending Act of 1923, Hindus
like Brahmos who married under the Act upon a declaration
that they did not profess Hinduism were undoubtedly governed
by Hindu law. After the amending Act, too, apparently a
Hindu marrying under it on a declaration that he does not

{b) The Special Marriage Act (111 of 1872) s. 2 (4) and provisos
1 and 2.

6

82

STArUTORY MODIFICATIONS.

[chap. Ill,

Hindu

Disposition of
Property Act.

Hindu Gains
of Learning
Act.

profess the Hindu religion will still be governed by Hindu law
as the expression ‘professes the Hindu religion’ in sections 22
to 26 can only apply to those who claim in the declaratlOl^
that they piofess the Hindu religion (c).

The Arya Marriage Validation Act (XIX of 1937) vali-^
dates all marriages before or after the commencement of tha
Act, between persons who at the time of marriage are Arya
Sdniajists, whethei or not they belonged to different castes or
to religions other than Hinduism befoie their marriage.

§ 46. The Hindu Disposition of Property Act (XV of
1916), the Hindu Transfers and Becjuests Act (Madras Act 1
of 1911) and the Hindu Tiansfers and Bequests Act (City
of Madias) Act (VIII of 1921), weic passed with a view to
mitigate the grave inconveniences lesulting liom the rule laid
down by the Piiv) Council in the Tagore case as a rule of
Hindu law that a gift inter vivos or a tcstamentaiy disposition
can only be made m favour of a peison wlio musl either m
fact or in ccmtemplation of law be in exisleru'c on the dale of
the gift or at the death of the tc'slator as the c ase may be.
Now, the provisions of Chapter II of the Tiansfei of Piopertv
Act relating to tiansfers inter vivos apply to Hindus and
Buddhists by reason of the Transfer of Property Amendment
Supplementarv Act (XXI of 1929) which came into foice on
1st April 1930. The provisions of seitions 113 to 116 of
the Indian Succession Act have been made applicable to
Hindus by the Acts of 1914 and 1916 Hindus governed by
the Marummakathayam and the Aliya Santana law^ are also
entitled to the benefit of Madras Act 1 of 191 I and The Hindu
Transfers and Bequests (City of Madras) Acii;, 1921(d). The
effect of these provisions will be referred to in a subseejuent
chaptei iCh XXI).

During the last ten years especially, most important changes
in Hindu law have been introduced bv legislation

§ 47. The Hindu Gams of Learning Act (XXX of 1930)
was passed to remove doubt and to provide a uniform rule
as to the rights of a membei of a Hindu undivided family in
property acquired by him by means of his learning S. 3

(c) Vidyagavri v. Narandas AIR, 1928, Bom., 74, In the goods of
Jnanendranath Ray (1929) 49 Cal, 1069 Thukrubai v. Attavar

(1935) 58 Mad. 1004.

{d) See explanation to section 2 of Act XV of 1916 and Act VIII
of 1921.

PARAS. 47 & 48.] STATUTORY MODIFICATIONS.

83

of that Act says “Notwithstanding any custom, rule or inter-
pretation of the Hindu Law, no gains of learning shall be
held not to be the exclusive and separate property of the
acquirer merely by reason of —

(o) his learning having been, in whole or in part imparled
to him by any member, living or deceased, of his family,
or with the aid of the joint funds of his family, or with the aid
of the funds of any member thereof; or

(6) himself or his family having, while he was acquiring
his learning, been maintained or supported, wholly or in part
by the joint funds of his family, or by the funds of any
member thereof”.

In this Act “ learning ” means education, whether
elementary, technical, scientific, special or general, and training
of every kind which is usually intended to enable a peison to
pursue any trade, industry, piofession or avocation in life;

“gains of learning” means all acquisitions of property made
substantially by means of learning, whether such acquisitions
be made before or after the commencement of this Act and
whether such acquisitions be the oidinary or the extra-
oidinaiy lesult of such learning”.

The Act is declaratory and laigel) letiospective and governs
all acquisitions whethei made before oi after the commence-
ment of the Act. It docs not however affect any tiansfcr of pro-
perty made or a partition or an agreement for partition made
before the commencement of the Act, or any rights or liabili-
ties under such •transfer, partition or agreement or things
done before its commencement.

§ 48. The Hindu Inheritance (Kemoval of Disabilities) Acts relating
Act, (XII of 1928) amends the rule of Hindu Law relating to to Inheritance,
exclusion from inheritance of certain disqualified heirs.

Section 2 provides: “Notwithstanding any rule of Hindu
Law or custom to the contrary, no person governed by the
Hindu Law, other than a person who is and has been from
birth a lunatic or idiot, shall be excluded from inheritance or
from any right or share in joint family property by reason
only of any disease, deformity, or physical or mental defect”.

It leaves the prior law untouched as regards any right in
respect of a religious office or service or of the management
of any religious or charitable trust. It does not apply to
any person governed by the Dayabhaga school of law and
is not reti ospective in its operation.

84

STATUTORY MODIFICATIONS.

[chap, hi.

The Hindu Law of Inheritance (Amendment) Act, II of 1929,
alters the order of intestate succession under the Mitakshara
law, with a view to prefer certain near bandhus or cognates to
distant agnates, in the succession to the estate of a Hindu male
dying without male issue. It provides that a son’s daughter,
daughter’s daughter, sister and sister’s son, shall in that order
come in as heirs next after the paternal giandfather and
before the paternal uncle.

A son adopted by the sister’s husband after her death
however is not her son within the meaning of the Act. The
Act does not provide for a son’s daughter’s son, daughter’s
son’s son, daughter’s daughter’s son, son’s son's daughter and
son’s daughter’s daughter — a serious omission. They are in
the direct line and nearer bandhus than the sister and her son,
who are named in the Act(e). The Act applies onlv to
persons governed by the Mitakshara school of law The
provisions of this Act apply not only to the, estate of a Hindu
male who dies after the Act but to the estate of one who
died before the Act where the succession opens after the Act
on the death of his widow, daughter, mother, or grand-
mother ( / ) .

Hindu § d9. Quite recently, the Hindu Women’s Rights to

Women’s Property Act (XVIH of 1937) was passed to amend the Hindu

Property ^Act schools so as materially to confer greater rights

on women than they had. The Act effects revolutionary
changes in Hindu law, more particularly in the Mitakshara
law. It affects the law of the coparcenary, partition and
alienation. It will also affect the topics of inheritance and
adoption It confeis upon the widow of ,a man, whether
governed by the Mitakshara or the Dayabhaga law, rights

(e) See Kalimuthii v Ammamuthu (1934) 58 Mad , 238, 249, 251.
The nature of ,(he estate taken by the new female heirs will be, ac-
cording to the ‘school of law, either limited (Mitakshara) oi absolute
( Mayukha)

()) Lahshmi v Anantarama 119371 Mad, 948, A I.R 1937 Mad,
699 FB [overruling Knshnan Chettiar v Manikkammal (1934) 57
Mad, 7181, Mt Hajpali v. Surju Raj (1936) 58 All, 1041 FB, AIR.
1936 All, 507 FB , Rajdeo Singh v Mt Janak Raj AIR 1936 All,
154, Shakuntala Bai v. Kaushalya (1936) 17 Lah , 356, AIR 1936
Lah, 124, Chulhan v Mt Akli AIR 1934 Pat, 324, Pokhan Diisadh
V Mt Manoa (1937) 16 Pal, 215 FB, Shankar v Raghoba AIR.
1938 Nag, 97, in Mt Charjo v Dinanath AIR 1937 Lah, 196(2),
the Act was applied to the stridhanam property of a woman who died
without issue and whose husband had predeceased her by ascertaining
the heirs of her husband as under the Act and treating the property
as the husband’s property. This decision overlooks the express pro-
vision in sub-seclion 2 of section 1 which limits the altered order
only to theJ property of males.

PARAS. 49-51.]

RULES OF EQUITY.

85

of inheritance to his property even when he leaves male
issue. Similar rights are conferred upon the widows
of his predeceased son and of his predeceased son. In a
Mitakshara undivided family, the widow of a deceased co-
parcener takes his interest. In all cases, the widows are
entitled to claim partition, but they take only the limited
interest of a Hindu woman. Where a coparcener leaves a
widow, the rule of survivorship no longer takes effect.

The Act came into force on the 14th April, 1937 and has
no retrospective operation. As the original Act was badly
drawn, it has just been amended by an amending Act which
is to have effect as from the 14th April,# 1937. The inter-
pretation and effect of the Act will be fully discussed in a
subsequent chapter (/^).

§ 50. There does not appear to be any reasonable doubt
as to the validity^ of the Act of 1937. No doubt Part III of
the Government of India Act, 1935, came into force on the
1st April, 1937, with the result that the distribution of legis-
lative poweis as between the Indian Legislature and the
Provincial Legislatures took effect under Secs. 100 and 316
of the Goveinment of India Act as from that date. But the
Bill had already been passed by the Indian Legislature before
the commencement of Part III. The Governor-GeneraPs
assent on the 14th April, 1937, was valid as a necessary
incident of the power of the legislature to pass the bill before
the 31st March, 1937. The old legislature itself was continued
by Sec. 317 and the ninth schedule of the Goveinment of
India Act. Neither Section 292 nor clause 9 of the Com-
mencement and Transitory Provisions Order, 1936, applies to
this Act or affects the validity of the Governor-General’s assent
given after the 1st April, 1937. Clause 9 of the Order is
overridden by a Statute of Parliament, The India and Burma
(Existing Laws) Act, 1937, 1 (1) (i). But the validity

of the recent amending Act stands on a different footing.

“Intestacy and succession” as regards agricultural land, which
is what the vast bulk of land in India is, are excluded from
No. 7 of the concurrent list, and are only in No. 21 of the
provincial list. The recent amending Act therefore may to
a large extent be ultra vires unless supplemented by
provincial legislation.

§ 51. The principles of justice, equity and good con- Justice,

science, which are made applicable, in the absence of any equity and

good

. conscience.

(/i) Chapter XIV.

36

RULES OF EQUITY.

[chap. Ill,

express provision of Hindu Law, by the several Civil Courts
Acts are, as they have always been, certainly an additional
source of Hindu law. The term Nyaya, meaning equity
and reason, was recognised by the Smritis as applicable both
to cases not covered by the written law as well as
where two Smritis differed (g). Gautama says: ‘Tn cases
for which no rule is given, that course must be followed
of which at least ten (persons) who aie well instructed,
skilled in reasoning and free from covetousness approve”(/i) .
Narada and Brihaspati refer to this residual souice as Dharma
(justice) or Yukti (equity and reason) (i) Nilakantha in
Vyavahara Mayukha refers to a text of Biihaspati which
insists upon equity' and reason as the determining factor. “No
decision should be made merely exclusively according to
the letter of the Sastra for, in a decision devoid of Yukti
(reason or equity) , failure of justice occurs” (/).

Rules of justice, equity and good conscience aie proper I v
applicable in the administration of Hindu law to cases not
governed by the Smritis and the Commentaiies as interpreted
by the Com Is (k) . Analogy is more a method of interpre-
tation than a rule of justice, equity and good conscience.
There is no doubt that both the pniuiples of justice, equity
and good conscience and the rule of analogy, separately or
together, have been and are always applied in modern Hindu
law.

Justice, equity and good conscience have been generally
understood to mean the rules of English law modified to suit
Indian conditions (/), but they may equally well be rules or
analogies deduced from general principles ,of Hindu Law,

{g) Yajn., II, 21.

{h) Gaul., XXVIll, 4R, Mann, XII, 108-112.

(z) Nar., Introdn, 1, 10; Brih , 11, 18, XXVII, 2.

(y) Brih, II, 12, Artha&astra, III, 1, 51, 55, 57 (Dr. Jolly’s edn.).
(Shamasastn, 185) refers to equity and justice as Nyaya and
Dharmanyaya as a ground of legal decision; V. May., I, i, 12.

(k) Kenchava v. Girimallappa (1924) 51 I A., 368, 48 Bom, 569,
per Kumaraswami Sastri J in Siibrarnania Iyer v Ratnavelu Chetty
(1918) 41 Mad, 44, 74, 75 FB, Jagannath Gir v. SheV Bahadur
(1935) 57 All, 85.

(/) “In point of fact, the matter must be decided by equity and
good conscience, generally interpreted to mean the rules of English
law, and found applicable to Indian society and circumstances” in
Waghela Rajsanji v. Shekh Masluddin (1887) 14 I.A., 89, 96, 11 Bom.,
551, 561 (case of guardianship) , Mehrban Khan v Makhna (1930)
57 LA., 168, 11 Lah , 251, Muhammad Raza v. Abbas Bandi (1932)
59 1 A., 236, 246, 7 Luck., 257, Narayana Sah v. Kannamma Bai (1932)
55 Mad, 727, 746.

PARAS. 51 & 52.] VARIOUS APPLICATIONS.

altered to suit the conditions of modern society (m). “Hindu
law is a jurisprudence by itself and contains, within limits,
all the principles necessary for application to any given

case The Hindu lawgivers have not indeed laid

down a rule in express terms on every conceivable point.
But having provided texts for such cases as had arisen before
or in their time, they left others to he determined either with
reference to certain general principles laid down by them in
•clear terms or by the analogy of similar cases, governed by
•express texts” (n). The Privy Council deduced principles
fiom the law of gifts and applied them to the law of wills
-and pointed out in the Tagore case (o) that it is the duty
of a Court, “dealing with a case new in the instance, to be
governed by the established principles and the analogies
which have heretofore prevailed in like cases”. Accordingly
where a Hindu who was the next reversioner to the estate of
an intestate was convicted of the murder of the intestate’s
mother, it was held that he was disqualified from succeeding
to the estate, on principles of justice, equity and good
conscience (p) . Courts are also entitled to interpret Hindu
law so as not to affect paramount questions of public policy
or to depart from well settled principles of jurisprudence (</).

^ 52. The question who arc governed by Hindu law is
not easily answered by saying that all Hindus are governed
by It. For, there are classes of Hindus who arc governed
by their customary laws and not by the Hindu law, for
instance, those that follow the Marumakkathayam law in
Malabar and the Aliyasantana law in Kanara and those Hindu
oommunilies in ^he Punjab who are governed by their custo-
mary law. On the other hand, some Muhammedan commu-
nities, descended from an original Hindu ancestry, like the
Khojahs, the Cutchi Memons, the Borahs, and the Halai
Memons, are, subject to the new Shariat Application Act,
1937, governed by Hindu law in matters ,of succession
-and inheritance. Subject to the above exceptions, Hindu

(m) Bhyah Ramsingh v. Bhyah Vgur (1870) 13 M.T.A., 373, 390;
Ramchandra s case (1914) 41 LA, 290, 299, 42 Cal., 384; Subbaraya
Pillai V. Ramaswami PiUai (1899) 23 Mad., 171; Budansa Rowther v.
Fatma Bi (1914) 26 M.LJ, 260, 264.

(n) Per Chandavarkar J. m Kalgavda Tavanappa v. Somappa
(1909) 33 Bom., 669, 680.

(o) Jatindra Mohan Tagore v. Ganendra Mohun Tagore (1872)
1 I.A. Sup. 47, 68 ; Mirehouse v. Rennell 1 Cl. & F., 546, 6 E.R., 1015.

ip) Kenchava v. Girimaf lappa (1924) 51 I.A., 368, 48 Bom., 569.

( 9 ) Compare what Lord Phillimore said as to statutes: Kenchava
V. Ginmallappa (1924) 51 I.A., 368, 373, 48 Bom., 569, #75.

VARIOUS APPLICATIONS.

[chap. Ill,

88

law applies to Hindus by birth as well as to Hindus by
religion. It is now well settled that a Hindu does not cease
to be governed by Hindu law by lapses from orthodox Hindu
practice or by deviation or dissent from its central
doctrines (r). Several religious sects or bodies had at
various peiiods and under various circumstances split off
from the Hindu system but their members nevertheless con-
Jains and tmue to live under Hindu Law. Of these, the Jains and the

Sikhs. Sikhs are conspicuous examples. In Ram Bhagwan Koei v^

/. C, Bose (5), the Sikhs (/) and Jams were held to be
goveined bv Hindu law except to the extent to which it i»
varied by custom. The Jams, generally adhering to the
ordinary Hindu Ikw, that is the law of the three supenoi
castes, recognise no divine aiithoiity in the Vedas and do not
piactise the sraddhas 01 (eiemonies for the dead (2;). Noi dc>-

(/•) Rani Bhaguan Koer \ J ( Bose (1903) 30 I A , 249, 31 Cal ^
11, Ishwari Prasad v Rai H P La! (1927) 6 Pat, 506 Thr dtcision
in Kai Bahadur \ Bishen Da\al (1882) 4 All, 343, that the term
‘Hindu’ meariJs an orthodox Hindu in the stmt sense or orthodox
believer in the Hindu ndigion which was dissented h> the Punjab
('hief ( ourl whos< decision was affirmed by the Privy (.oiincil is on
that point no longer law

(si (1903) 30 lA, 249, 11 Cal, 11, (wheie the judgment of the
( hief (.ouit IS also reported)

(H Mahan f Basantdas v. Hem Singh (1926) 7 Lah , 275, Sohanlat
V. Kartai ^ingh (19J5) 16 Lah, 320, 325, see also Jagga Mohan v.
Saurncoomai 2 Moi Digest, 13, Bhagwan Singh \ Bahshi Ram AIR.
1933 I.ah , 494

ill) It ina\ he wrong to ilesriibe the Jams as dissenters from
Brahnunisni, but thev were <lissenteis from the V^cdic religum While
Brahmini'-m iepies<*nlc"d the main ritualistic tradition ol the Vedas
bofleneil b\ tin I 'panidiads. Jainism and Buddhism* wcie ofT-shoots of
the Aryan religion in India As to the oiigin of Jainism, see per
Kiimardbwami hastii, J, in Geitappa v Eramma (1929) 50 Mad, 228;
also *rht jam Law' by L K Jam Shio Singh Rat v Dakho (1878)
5 I A , 87, I All, 688, ( hotte^ Lai \ Chiinno Lai (1879) 6 lA, 15,
4 Cal, 744, Sheokuar Bai \ Jobraj (1920) 25 CWN, 273, AIR.
1921 P (. , 77, Ram Bhagwan Koer J ( Bose (1903) 30 I A , 249,
Lain Ru})( hand *\ Jarnbu Prasad (1910) 37 I A, 93, 32 All, 247,
(where the Xgarwalla Jams were held to belong to one of the twice
born classes and the ordinary Mitakshara law was applied to them),
Dhanra] Joharmal \ Sonibai (1925) 52 JA, 231, 52 C'al , 482 (adop-
tion is purely a secular matter to Agarwalla Jains) , see also Bhagwan
das Tejrnal v Rajmal (1873) 10 Bom HCR, 241, Sundariji JJangi
Dahibai (1905) 29 Bom, 316, Anibabai v Govind (1899) 23 Bom.
257 (The Jains have caste divisions of their own They are mostly
Vaisyas and their four mam divisions are Pramar, Oswal, Agarwal and
Khandewal) , Bhikahai v Manilal (1930) 54 Bom, 780, Asharfi

Kunwar v Riipchand (1908) 30 All, 197, Periammani v Krishna-
swarm (1893) 16 Mad, 182, Mt Lado v Banarsidas (1933) 14 Lah,
95 (adoption), Sundar I^al v Baldeo Singh (1933) 14 Lah, 78
(adoption) , Man Deiamma v. J mamma 10 Mysore, 384.

(v) This passage is cited with approval in Sheokuar Bai v. Jobraj
(1920) 25 qW.N, 273 PC, C H.I., I, 150

PARA. 52.]

VARIOUS APPLICATIONS.

they recognise the spiritual superiority of the Brahmins.
The Jains in the Madras Province who were previously
governed bv the Aliya Santana law have now been brought
under the Mitakshara law by the Jaina Succession Act, (III of
1929) . There is no personal law except Hindu law applicable
to Buddhists in India. They cannot be governed by Burmese
or Chinese Buddhist law. They must therefore be governed by
Hindu law except where there is a change to a Buddhist domi-
cil and an adoption of that law {w). Similarly the Lingayats,
a body of dissenters from Hinduism who deny the supremacy
of the Brahmins and caste-distinctions have been held to be
a sect of Hindus governed by ordinary Hindu Law except
in so far as it is varied by any custom amongst them (x). A
Hindu does not by becoming a Brahrno or an Arya Samajist
or a Dayanandi, cease to be governed by Hindu law and both
the Brahrno Samaj and the Arya Samaj are only sects of
Hindus for the purpose of the application of Hindu Law (y) .
In Ma Yait v. Maung Chit Maung {z) the question was
whether the Kalais descended from Hindus who married
Burmese women were a Hindu community governed by
Hindu Law; it was held that they were not, but that they
were governed by the Indian Succession Act on the ground
that there was no continuity of Hindu character in their case
as they were away liom Hindu centres in an alien country
in a Buddhist enviionnient and their mode of life was different
from that of the Hindu communities in India. Lord Haldane
pointed out that it a man is born a Hindu, deviation from
orthodoxy not amounting to a clear renunciation of his reli-
gion does not deprive him of his status as a Hindu and that,
though contact %vith othei leligions may well evolve sects
which discard many characteristics of orthodox Hinduism and
adopt ideas and rites popularlv supposed to belong to other

iiv) See Sarkar Sasln (Hindu Law, 7th edn,«61), see Ram
Pergash v. Mt Dahan (1924) 3 Pal, 152 at 175; see Vannikone v.
Vannichi (1928) 51 Mad, 1 F B. “Mere conversion would not involve
the adoption of its laws as to the inheritance and succession.”

(jc) Soniasekhara Royal v Sugattur Mahadeva Royal AIR.
1936 P.C , 18, 70 M L.J., 159, affirming 53 Mad, 297; Basava \ Lingan
Gowda (1895) 19 Bom., 428, 457, Fakirgowda v. Gangi (1898) 22
Bom., 277, see Thurston’s ‘Castes and Tribes,’ Vol. IV, 236.

iy) Rani Bhagwan Koer v. /. C, Bose (1903) 30 I. A., 219, 31 Cal.,
11. In the goods of Jnanendranath Ray (1922) 49 Ca!., 1069 (where
there was a declaration under the Special Marriage Act that he did
not profess Hinduism) . Mt. Suraj Jote Kuer v. Mt Attar Kumari
(1922) 1 Pal., 706; see also Ganga Saran Singh v. Mt. Sirtaj Kuer
A.I.R. 1935 All., 924; see as to Jali Vaishnavas of Bengal, Nalinaksha
V. Rajani (1931) 58 Cal., 1392.

iz) (1921) 48 LA., 553, 49 Cal., 310.

Buddhists.

Lingayats.

Brahmos
and Arya
Samajists.

Kalais.

90

VARIOUS APPLICATIONS.

[chap. Ill,

systems, continuity with a religion which is so elastic in its
scope as is Hinduism may not be destroyed. The Judicial
Committee referred m Bhagwan Kuar s case to the separation
from the Hindu communion, and in Ma Yait^s case to a clear
renunciation of the Hindu religion. As the authorities show,
neither can be established except bv a Hindu becoming a
Muhammadan or a Christian oi by the combined operation
of migration, intermarriage and new modes of life (a). A
solemn declaration under the Special Marriage Act by a
person that he does not profess the Hindu religion has been
rightly held to be insufficient to dcpiive him of his status as
a Hindu (b) .

A man tannot alter the law of succession applicable to
himself by a mere dei laration that he is not a Hindu. He
can only altei his existing status by becoming a member of
such a religion as would destroy that status and give him
a new one. The question is whether a Hindu by proclaiming
himself not to belong to the Hindu religion or to belong
to no leligion can effectively renounce his religion. Hinduism
not only cornpiises religious beliefs and modes of life but also
social, moral and philosophical implications as well. There-
fore a mere investigation into a man’s modes of life and
religious beliefs without taking his racial and historical back-
ground into account will not be conclusive As Lord Haldane
pointed out, a method which takes account of historical as
well as other considerations must be applied and the opinion
of the community in which he lives may well be a factor.
The reasonable conclusion appears to be that the term
‘Hindu’ in the Civil Courts Acts of the Various provinces
must be applied to persons who are Hindus either by biith
or by religion provided that those who are born Hindus have
not become converts to Christianity or Muhammadanism. In
other words, if a Hindu, on his conversion to Chiistianity oi
Muhammadanism, ceases to be governed by his prior personal
law, it is because of a conflict of laws. In the absence of any
such conflict, the personal law must continue to apply to him
even though he is not a Hindu in the strict theological sense

(a) Though there may be a conversion to the Zoroastrian religion,
a Hindu cannot become a Parsi which is a racial term. Sir Dinsha
M, Petit V. Sir Jamsetji Jijibhoy (1909) 33 Bom., 509; Saklat v. Bella
(1925) 53 LA., 42.

{b) In the goods of Jnanendranath Ray (1922) 49 Cal., 1069;
Vidyagavri^y, Narandas A.I R. 1928 Bom., 74.

pabas. 52 & 53.]

NAMBUDRI USAGE.

91

(6^). Conversely, conversion to Hindu religion of persons of
non-Hindu origin attracts with it the application of Hindu law.

Where an European lady (c) or an Indian Christian (d),
after formal conversion to Hinduism married a Hindu by race
and religion, the Madras High Court has held that she was a
Hindu within the meaning of the Succession Act or Hindu law,
and that membership of a caste was not a necessary pre-
requisite for being a Hindu.

§ 53. The Nambudris are governed by Hindu law except Nambudris.
so far as it is shown to have been modified by usage or
custom having the force of law, the probable origin of the
usage being some doctrine as it stood at •the date of their
immigration into Malabar or some Marumakkalhayam
usage (e). The date of their settlement on the West

Coast is not known but it must have occurred cer-
tainly before the Mitakshara was written and even
prior to the great Sankaracharya (788-820 A.D.) (/).

The Hindu law governing them is generally speaking the
law laid down in the Mitakshara. The gotras of the Nam-
budri may be said to be the same as those of the Brahmins
of the East Coast, indicating thereby descent from the same
common original ancestors. Among the Nambudris, the
mode of tracing succession and the devolution of property are
in accordance with Hindu law and contrary to the Marumak-
kathayam usages of Malabar. The same rule of collateral
succession obtains both among Nambudri Brahmins and other
Brahmins of South India. They recognise the authority of
the Vedas and the Smritis like all other Brahmins (/^) . Among
Nambudris, the family property was not liable to be parti-
tioned at the instance of any one of the co-parceners till the
Madras Nambudri Act (XXI of 1933) which confers the right
to partition. But the self-acquisition of a Nambudri Brahmin
passed to his heirs under the Mitakshara Law before the
enactment of the Nambudri Act which creates a new line of

(61) The dictum in (1929) 52 Mad., 160, 165, infra, and m
Dagree v. Pacotti (1895) 19 Bom., 783, that the term ‘Hindu* is used
in a theological sense does not amount to much, as it is admitted that
short of conversion to Christianity or Mahomedanism he remains a
Hindu.

ic) R. D. Morarji v. Administrator-General of Madras (1929) 52
Mad., 160. See Ramayya v. /. Elizabeth A.I.R. 1937 Mad., 172.

(d) Muthusami v. Masilamani (1909) 33 Mad., 342.

(e) Vasudevan v. Secretary of State (1888) 11 Mad., 157, 160, 181;
Vishnu V. Akkamma (1910) 34 Mad., 496; Narayanan Nambudri y,
Ravunni Nair (1924) 47 M.L.J., 686.

(/) Vasudevan v. The Secretary of State (1888) 11 Mad., 157, 180.

(/i) (1888) 11 Mad, 157, 161.

92

CUSTOMARY LAW.

[chap. Ill,

General
applicability
to all Hindus

heirs for the self-acquired or separate property of a Nambudri
male. The Nambudri widow who is the sole surviving
member of the illom (family) is generally speaking subject
to the same restrictions as an ordinary Hindu widow in respect
of alienations. A Nambudri widow can adopt or appoint
an heir in order to perpetuate her illom, which is equivalent
to a Kritrima adoption (g). Among them the adopted son,
as a Kritrima son, is entitled to the properties of both his
adopted and natural father (/i). One peculiarity of their
mariiage system was that only the eldest son could marry.
Now under the Madras Nambudri Act (XXI of 1933), the
othci major male, members are at liberty to marry. By the
Nambudri Act, a Nambudri’s right to marry more than one
wife has been restricted. Among Nambudns, neither divorce
iioi lemarriage of widows is allowed The Malabar and
Aliyasantana law are outside the scope of this work though,
with the exception of some Majjpillas (r), th« people primarily
governed by that law are Hindus in the fullest sense Maru-
makkattayam law however has been mateiially modified by
the Madras Maiumakkattayam Act, 1932 (Act XXII of 1933).
Their customary marriages are now made legally valid and
binding and stiictly monogamous, though dissoluble. Rights
of partition within limits aie also conferied except in respect
of certain ancient kovilakoins and taiwads.

51 It was once suggested that it was necessary fiist
to ascertain whether the Hindu law of the Smntis and Com-
mentaries as a whole was accepted by particular communities
of Hindus on the ground that they may have originally been
non-Aryans or aborigines. But it may now be taken as settled
that the general Hindu law, prevailing over large tracts of
country and populous communities, applies to every Hindu
amongst them, unless he could show some valid local, tribal
or familv riis,tum to the contrary In order to bring a case
under any lule of law laid down by recognised authority for
Hindus generally, it is not necessary that evidence should be
given of actual events showing that in point of fact the people
subject to that general law regulate their lives by it Special
customs have to be pleaded by way of exception Any other

Cg) Narayanan Nambudri v. Krishnan Nambudri (1934) 57 Mad.^
725, 67 MLJ, 511.

(A) Vasudevan v. Secretary of State (1888) 11 Mad., 157, 178.

(i) The Mappillas of the We^t Coast are governed by the
Shariat Aiv'^lication xAct and the Mappilla Succession Act I of 1918.

PARA. 54 .]

GENERAL APPLICABILITY.

view would be to invert the processes by which law is ascer-
tained (/).

The Adi Dravidas and Chamars are Hindus governed by
Hindu law (A). The question as to how far Hindu law
as expounded in the Smritis and the Commentaries is to be
applied to the Dravidian and other communities of non-
Aryan descent is one which gave rise to a good deal
of controversy. But it is now generally established that
Hindu law should be applied to them, except where
there is clear proof of a custom to the contrary (/). The
Dravidians of South India though probably of non-Aryan
origin have become Hinduised centuries ag(f and are certainly
Hindus in religion and social usages and there can be no
denying the applicability of Hindu law to them. Some of
iheir ancient customs may here and there survive (m) , As
regards aboriginal tribes, it is enough if they have become
sufficiently Hinduilsed, though they may retain many of their
old customs. The aboriginal tribe called the Bhuyyahs was
held to be sufficiently Hinduised and to be governed by Hindu
law (/i). In Fanindra DeVs case (o) it was held that a
tribe to which the Baikantpur Raj family belonged had not
become sufficiently Hinduised and that it was still governed bv
family customs. The Jats, whatever their origin, are Hindus
and are governed by Hindu law in the absence of a custom
to the contrary (/?). The aborigines of Assam have become

(y) Bhagwansingh v. Bhagwan Singh (1899) 26 I.A., 15J, 165, 21
All., 412, 423; Mulhu Vaduganatha v Doraibingha (1881) 3 Mad., 309,
335, 339. MinaksJA, v. Ramanada (1888) 11 Mad., 49 (52) F.B., see
Kalappa v. Shivappa 39 Bom. L.R. 1282 (claim to belong to regenerate
class, negatived) .

{k) Manitkam v. Poongavanammal (1934) 66 M.LJ., 543, 547
(adi dravida) ; Sohansingh v. Kallasingh (1929) 10 Lah., 372

(Chamars) .

(/) Vanmhone v. V annichiammal (1928) 51 Mad,* 1, 9 FB., per
Devadoss, J. m Vuwanatha v. Doraiswami (1928) 48 Mad., 944, 949.

(m) Palaniappa Chettiar v. Alaganchetti (1921) 48 I.A., 539, 44
Mad., 740.

(ti) Sahdeo Narain v. Kusum Kuman (1923) 50 I.A., 58, 2 Pat ,
230.

(o) Fanindra Deb v. Rajestvar (1885) 12 I.A., 72, 81, 11 Cal., 463,
481.

(p) The Jats (Sanskrit Yadava) are the descendants of an
aboriginal race. Mannings, Ancient India, I, 66. Mt, Bhagwani v.
Kushi Ram (1914) 24 I.C., 982; Ram Pergash Singh v. Mt, Dahanbibi
(1923) 3 Pat., 152, 176, Mewa Rani v. Lai Sahai A.l.R. 1927 All.,
410 (Jats are Sudras). Kunwar Basant Singh v. Kunwar Brij Singh
(1935 ) 62 I.A., 180, 57 AIL, 494 (in the matter of adopjtion, Jats arc
governed by customary law).

94

GENERAL APPLICABILITY.

[chap. Ill,

Illegitimate

children.

Hinduised and are governed by the Bengal School of Hindu
Law (q) The Rajbansis, originally of non-Aryan origin
have adopted Hinduism and are governed hy Hindu law (/).
The Kurmi Mahtos of Chota Nagpur are governed by Hindu
Law though the onus of proving the particular school of
Hindu Law is upon the person asserting it (,s). The
Tliattans ^t) following the Makkathayam law of Malabar as
well ds the Ezhuvds (a) and the Makkathayam Thiyas (v) ^
dll of Malabar, are governed by Hindu law.

§ 55. Illegitimate children of Hindu parents are of course
Hindus and are governed by Hindu Law (ic) . Where the illegi-
timate children are born to paieiUs belonging to two sepai ate
religious communities as Hindus and Muhammedans or Hindus
and Chiistians, ordinarily the status of the niothei will deter-
mine the status of her offspring and the law applicable to
them. Accordingly the illegitimate son of a Hindu by a
Christian woman was held not entitled to# maintenance out
of the estate of the Hindu father (a). It has been held that
where a Euiopean had illegitimate sons by two Hindu women
and they confoimed m all respects to Hindu habits and usages,

iq) Deepo Delia ^ Gotirido Deb (1871) 16 WR, 42, 11 BLR,
l.U (Koch), Dinu l\ath Mahunto v Chunih koi fi (1912) 16 CL J , 14
(Koch) , i\earnni Ka< hari \ Ardharam Kaihati A [ R 1921 ( al , 5S8,
35 CLJ, 31 (Kdchan) , Ketry Kolilani v Moniram (1873) 19 W R ,
362 (Kolild).

(r) Santa/a Btwa \ Badaswari Dasi (1923) 50 Cal, 727, Narendra
V Nagendra A I R 1929 Cdl , 577, 50 CLJ, 267.

(s) knttibash Mahton v Bhiidivan Mahtani AIR 1925 Pdt , 731,

Oanesh Mahto v ^hib Charan Afahato (1931) 11 Pat, 139 As to
Munddris of Ranchi, sec Daman Sahu v. Buka AIR 1931 Pdt, 198,
as to whelhcT Coiids and Rdj Gonds are Hindus, or not, and if so,

to what extent, see Vithoba v Bal Singh AIK 1923 Nag, 317, Alt.

Sarjabai v Gangarao AIR 1930 Nag, 25, Ramnath \ Sahabri Al R.
1921 Nag, 330, Jankubai \ Farvali AIR 1925 Nag, 353, The Korkus
of Central Provinces are governed generally hy Hindu law, subjtct
to proof of any special custom Ishakalh v Thakur Ptasad 20 N L J ,
159

(0 KiinJu Kiitti v Raman (1922) 46 Mad, 597.

{u) Balaknshnan v Chittoor Bank AIR 1936 Mad, 937, 71

MLJ, 766

(r) Kiittayatha kiitti v Atchuthan AIR 1921 Mad, 74, 13

MLW, 101, P (.hakkiitti v K Chanthu Kiitti AIR 1927 Mad, 877,
58 MLJ, 368, overruling 39 MLJ, 427. See also K. P, K. Raman
V. R V, Aluthu (1920) 13 MLW, 218

iw) Sivasangu v. Minal (1889) 12 Mad, 277, Visvanatha v Dorai-
swami (1925) 48 Mad , 944, 950, Narayan Pundlik v. Laxman (1927)
51 Bom, 784, Dattatraya v Matha Bala (1934) 58 Bom, 118

{x) Lingappa v Esudasan (1904) 27 Mad., 13, Charanjit v. Amir
All (1921) 2 Lah , 243 (illegitimate children born to a Hindu by a
Muhammadan woman). See Bhaiya Sher Bahadur v. Bhaiya Ganga
(1913) 41 I A., 1, 36 All, 101, (where the matter was left open).

PARAS. 55 & 56.] CHANGE OF DOMICIL*

95

they must be treated as Hindus and governed by Hindu Law
in all respects (y). On the other hand, the vast majority of
illegitimate children of Europeans by Indians or half-caste
women, known as East Indians, and referred to in the judg-
ment in Abraham v. Abraham (y^), who, have been acknow-
ledged and cared for by their fathers and have adopted
European modes of life, are governed not by Hindu Law but
by the Indian Succession Act. On a similar principle, it has
been held that sons of Hindu dancing girls of the Naik caste
who were converted to Muhammadanism but who lived with
their Hindu grandparents and were brought up as Hindus
were Hindus governed by Hindu law, as also the daughters of
the family {z) , So also outcastes and degraded persons and
their descendants, when they are not converts to other reli-
gions, are governed by Hindu law (z^).

§ 56. Prima facie, any Hindu residing in a particular
province of Indi^ is held to be subject to the particular
doctrines of Hindu Law lecognized in that province. In
Bengal and Assam, he is governed by the Dayabhaga School
of Hindu law; in the Mithila country in Bihar, by the Mithila
law: in the rest of Bihar, in the district of Benares and in the
Central, North Western and Noithern India, by the law of the
Benaies school; in Guzerat, in the island of Bombay and in
North Konkan, liy the Mayukha law, in the rest of the Bombay
province, by the Mitakshara and the Mayukha and in Southern
India, by the law of the Dravida School. The Mitakshara
law of the Benares school prevails in Orissa fa) but the
Ooriyas of those paits of Gan jam in Madras which have now
been transferred to Orissa will continue to be governed by the
law of the Dravida School, as before (6). The Mitakshara

(y) Myna Uaee v Ootaram il861> 8 M.I A , 400 (after remand,
2 M.H.C.R., 196)

(yO 9 M.IA., 195

(z) Ram Pergash Singh v Mt Duhanbibi (1924) 3 Pat, 152.

(zl) Subbaraya v Ramasami (1900) 23 Mad, 171; Sarna Mo\ee
V. Secretary of State (1897) 25 Cal, 254; Siindan Dossee v Nem\e
Charan (1907) 6 Cal. L J , 372, Narain Das v. Tirlok Tiwari (1907)
29 All., 4; Ishwari Prasad v. Rai Han (1927) 6 Pat , 506, 540;
Neelawa v. Gurshiddappa A.l R. 1937 Bom , 169.

(а) As to Orissa, see Morley’s Digest Introdn. Jogendro v.
Nityanund (1890) 17 I.A., 128, 18 Cal, 151; Parbati Kumar v. Jagdish-
chunder (1902) 29 1 A., 82, 29 Cal, 432; Kalee Pudo Banner jee v.
Choitun Pandah (1874) 22 W R.C.R., 214. Raghubanund Doss v
Sadhu Churn Doss (1878 ) 4 Cal., 425.

(б) As to the Ooiiyas of Ganjam, see Raghunadha v. Brozo Kishorc
(1876) 3 LA.. 54. 1 Mad. 69.

Domicil.

96 ’

CHANGE OF DOMICIL.

[chap, in,

law as administered in Bombay is the law in Sind and the
Mayukha is not the controlling authority (b^) . But this law
is not merely a local law. It becomes the personal law, and
a part of the status of every^ family which is governed by it.
Consequently, where any such family migrates to another
province, governed bv another law, it carries its own law
with It (c) including any custom having the force of law (d).
That law is the law existing at the time of migration, as
ascertained even from subsequent decisions in the domicil
of origin and is not affected by customs incorporated therein,
subsequent to the migration Of course, it is open to the
family to adopt the law of its new domicil which will have
to be affirmative!) proved (e). Where the emigration is to
a different country, the presumption that the family has
adopted the law of the people among whom it has settled will
be more readily made, if it is shown that the members of the
family have so acted as to raise the inference that thev defini-
tely cut themselves off from their old environment (/) . But
a family migrating from a part of India, where the Mitakshaia
or the Mithila system prevailed, to Bengal, would not come
under the Bengal law from the mere fact of its having taken
Bengal as its domicil And this rule would apply as much
to matters of succession to land as to the purely personal rela-
tions of the members of the family In this respect the rule
seems an exception to the usual principle, that the lex loci

(b^) Dodomal v Mt Kishmbai AIR. 1926 Sind, 231, as l<> Berar,
see Narayan v. Tuisirani AIR. 1925 Nag. 329 F.B , Harigir v. Anand
A.I.R. 1925 P.C, 127, as to the lex loci of Central Provinces, see
Keshao Kao v. ^adasheorao AIR 1938 Nag , 163

(c) This passage is cited with approval by Lord Dunedin in
Balwant Kao v Kaji Kao (1920) 47 LA, 213, 48 Cal, 30, Parbati
Kurnari v J agadishchunder (1902) 29 I A , 82, 29 Cal , 433, Balkisen
Devchand v. Kunjalal Hiralal AIR 1930 P , 133, 58 MLJ, 358;
Amba Bai v. Govind (1899) 23 Bom, 257, Mailathi Anni v. Subba-
raya (1901) 24 Mad, 650 I A Hindu governed by the Hindu law of
Pondicherry (French India) continues even after her migration to
British India to be governed by the Hindu law as administered in
French India], Govindachandra v. Kadha Kirto Das (1909) 31 All.,
477; Kulada Prasada v. Han Pada (1903) 40 Cal, 407, Jawahirlal v.
Jaranlal (1924) 46 All, 192, Sundaramier v Maharaja of Kolhapur
(1925) 48 Mad, 1, Rameshchandra Sinha v. Md. Elahi Baksh (1923)
50 Cal, 898 (Date of the migration is not material unless to ascertain
the law at that time), Suhhbir Singh v. Mangwar Singh (1927) 49
All, 302; Tula Ram Sah v. Shyam Lai Sah (1927) 49 AIL, 848, Babu
Motisingh v Durgabai (1927) 53 Bom, 242.

(d) Rana Sheonath v. Badan Singh (1922) 48 LA., 446, A.I.R.
1922 P.C., 146.

(e) Sarada P Roy v Umakanta (1923) 50 Cal., 370; Jiwan Beas
▼. Mt, Indra Kuar AIR. 1934 Pat., 260.

(/) Abdur Rahim Haji Ismail Mithu v. Halimabai (1915) 43 I.A., 35,
20 C.W.N., 562, 30 M.L.J., 227.

PARAS. 56 & 57 .] CHANGE OF DOMICIL.

97

governs matters relating to land, and that the law of the
domicil governs personal relations. The same rule as above
would apply to any family which, by local usage, had acquir-
ed any special custom of succession, or the like, peculiar to
itself, though differing from that either of its original, or
acquired, domicil (g). The reason is that in India there is
no lex loci^ every person being governed bv the law of his
personal status (/i). But if a Hindu contracts a mairiage
in a foreign country in a form which complies with the lex
loci of that country, no disability imposed by the Hindu
law will be recognized by the foreign court as invalidating
the maiiiage (i ) . While Hindu Law and usage prohibit
inairiagcs between the principal castes amongst Hindus, theie
IS no express rule prohibiting the niaiiiage of a Hindu with
a non-Hindu. In the absence of any such lule, therefoie, the
marriage of a Hindu and a non-Hindu contratled in England
may well be valid in India on principles of justice, equity and
good conscience. '•

5^ 57 If nothing is known about a peison excerpt that Change of

he lived in a ceitain jilacc, it will be assumed that his personal personal law
law IS the law which prevails in that place In that sense
only is domicil inipoitanl. But if moie is known, then, in
a« ( ordance with that knowdedge his personal law must be
determined, unless it can be shown that he has renounced his
original law in favoui of ihe law of the place to which he
migiated (y). in olhei words when such an oiiginal variance
of law IS once established, the presnmplion arises that it
continues; and the onu^ of making out then ( ontention lies

(^) Hiitrheputt) v Hajunder (1839) 2 MIX, 132, Byjnath \

Kopilmofi 21 WR, 93, and pci (unaiu, Soorendronath v Mt Hecra-
inonee (1868) 12 M T.A , 91, Manik (.hand v Jagat Settani (1890) 17
Cal, S18

(h) Budansa Roivther v Fatma Bi (1914) 26 M L J , 260

(/) Chctti V rjictti (1909) P 67, Hex \ The Sup(^ and Registrar
of Marriages, Hammersmith, Ex-par fe Mir Anwaiuddin (1916) 1

K B , 634 In (.hetti v (Ihetti one of the points decided was that the
disability was not part of the law of the domieil on the ground
that it was not the geneial disability of all the inhabitants of India
but purely a religions disability which could be got nd of at the
will of the party conceined (1909 P. 67 at 68) On the assumption
that the disability is imposed by the law of the Hindus, then pci'^onal
law IS, so fai as they are concerned, the law of the domicil. It is not
a religiou'5 law and can be changed just like the ordinary law
of domicil only by changing the domicil. For a curious conclusion
resulting fiom this ‘•ee Sainapatti v. Sainapatti A l.R. 1932 Lahore,
116 (where it was held that the validity of a marriage in England
between a Hindu male and a Christian woman in English form does
not make his mairying again a Hindu woman in India bigamy).

(/) Balwant Rao v Baji Rao (1921) 47 T A , 213. 48 ^al, 30.

7

98

EFFECT OF CONVERSION.

[chap. Ill,

Act of
Government

Conversion to
Muhammedan-
ism.

upon those who assert that it has ceased by conformity to
the law of the new domicil (A:). But this presumption mav
he rebutted, b> showing that the family has conformed in
its religious or social usages to the locality in which it has
settled, oi that, while lelaimng its leligious rites, it has
acquiesced in a couise of de\olulion of property, according
to the ( oinmon couise of descent of piopeity in that distiicl.
among persons of the same class (/) It is not open to a
member of the family that has adopted the law of the place
to which It has migrated to revert to the original domicil ,
‘^u(h ie\ertei (an onl\ be proved by pioving a custom (m)

01 ( ourse the* meie fact that, by the act of Goveimnenl.
a district, which is governed by one system of law is annexed
to one which is goveined by a diffeienl system, cannot laise
any presumption that the inhabitants of either district have
adopted the usages of the other ( n )

^ 58 Wheie a Hindu becomes a conveA to Muhammedan-
isni, he a((cpls a new mode of life, which is governed by a
law iecogniz('d. and enforced, in India It has been stated
that the property, which he was possessed ol at the lime of
his conveision. will devolve upon those who were entitled to
It at that time, by the Hindu law, but that the pioperty, which
he mav subsequently acquire, will devolve according to
Muhammedan law (o) The former proposition, however,
must be limited to cases where by the Hindu law his heirs had
acquired an interest which he could not defeat. The latter
part of the proposition, has been affirmed by the Privy Council,
in a case where it was contended that a family, which had
been converted several generations back to Muhamrnedanism,
was still governed by Hindu law Distinguishing the case of
Abraham v. Abraham (p) as a case where there was no law of
inheritance defined by statute, their Lordships said. “The
written law of India has prescribed broadly that m questions

(A:) Soorendronath v Mt Heeramonee (1868) 12 MIA, 81,

Ohunnessiirree v Kishen 4 Wym , 226, Sonatun v. Ruttun W.R., Sp ,
95, Firthee Singh v. Mt Sheo 8 WR, 261.

U) Rajchiinder v Gociilchund 1 S D , 43 (56); Chundro v. Nobin
Soondur 2 WR, 197, Rambromo v Kannnee 6 WR, 295, Junarud-
deen v Nobin Chitnder Marsh, 232, per (iinam, Soorendronath v
Mt. Heeramonee (1868) 12 M I.A , 81, 96

(m) Sornasekhara Royal v. Sugathur Mahadeva Royal (1935) 70
M L J , 159 P C affirming 53 Mad., 297.

(n) Prithee Singh v Court of Wards (1875) 23 W R , 272.

(o) 2 W MacN., 131, 132, Jowala v Dharum (1866) 10 M I.A , 511,

537 .

(p) (18^5) 9 M.T.A., 195.

PARAb. 58 & 59. J EFFECT OF CONVERSION.

99

ot succession and inheritance, the Hindu Law is to be applied
to Hindus, and the Muhammedan law to Muhammedans ; and
in the judgment delivered by Lord Kingsdown in Abraham
V. Abraham, p. 239, it is said that ‘this rule must be under-
stood to refer to Hindus and Muhammedans not by birth
merely but by religion also’.” Though Muhammedans are
ordinarily governed by Muhammedan law, they are also
governed bv custom having the force of law. It is now well
established that in cases of conversion to Mohammedanism
from Hinduism, there may be a custom at variance with rules
of Muhammedan law, governing the succession in a particular
community of Muhammedans. While in their essential
characteristics, custom and an election to abide by the law of
the old status differ fundamentally as sources of law, still
there is no mode of proving this alleged election except by
way of inference from actions and conduct that would estab-
lish a custom (p^)k

§ 59. The Khojahs in the Bombay province have been, till
now, governed, in matters of succession and inheritance, by
Hindu law. These are a class of persons who were originally
Hindus, but who became converts to Mohammedanism about
four hundred years ago, letaining, howevei, many Hindu
usages, amongst otheis an ordei of succession opposed to that
prescribed by the Koran. Similarly, the Memon Cutchees (q)
are also a sect of Muhammedans who were converted from
Hinduism some four ccntuiies ago but retained their Hindu
law of succession and are throughout India governed by that
law, save wherr a local custom to the contrary is
proved i r) In 1847, the question was raised iii^ the
Supreme Couit of Bombay whether this order of succession
could be supported, and Sir Erskine Peny, in an elaborate
judgment, decided that it could. His decision has been
followed in numeious cases in Bombay, both in*the Supreme
and High Court, and may be considered as thoroughly

(p') Md. Ibrahim v. Sheik Ib/ahini (.1922) 49 I.A., 119, 123, 124,
45 Mad., 308 (relating no Labbais of Coimbatore where it was held
that the custom was not made out). Custom is no longer admissible
under the Shariat Application Act, 1937 except as to agricultural land

{q) The term ‘memon’ means a convert.

(r) Abdur Rahim v. Hahmabhai (1915) 43 I A, 35, 20 C.W.N.,
362, 30 M.L.J., 227.

Retention of
Hindu usages.

100

CUSTOMARY LAW.

[chap. Ill,

established (5) It has, howevei, been held that these decisions
did not establish that the Khojahs and the Cutchee Meinons
had adopted the enliie Hindu fainilv law, and that it could
not be assumed, without suffitienl evidence, that they were
bound by the law of paitition, so far as it allows a son to
flaim a shaie of the family propeity in his father’s life-
time (/). Similai luliiigs have been given as regaids the
Sum Borahs of Guzeiat, and the Alolesalem Giiasias of
Broach, both of whiih tubes wcie oiiginally Rajput Hindus
lonveited to Aluhammedanism ( j Jn the former of these
cases, Ranade, J., said, “the pimciples laid down in these
decisions mav be thus stated [ L ) that though the Muham-
medan law geneiallv governs conveils to that faith fiom the
Hindu religion, vet (2) a well-established custom of such
coiiveits following the Hindu law of inheritance would ovei-
iide the general presumption ( r ) . (o) that tins custom

( 5 ) Khojdh s case, Peiiy, ()(. , 110, Cangbai v Thavur (18631
1 Bom lie, 71, 73, MuLbai. in the goods oj (1866) 2 Bom 11 ( ,
276, Rahirnbai, in the goods of, (1873) 12 Bom. H ( , 291, Hahinuit-
bai V Htrbai (1879) 3 Bom, 31, Suddiirtonnessa \ Miijada (1878)

3 C.al , 694, haji Ismail s Hill (1882) 0 Bom, 432, Ashabai v liaji
lycb (1883) 9 Bom, 113, Abdul Cudiii v luiner, ibid, 138, Mahomed
t^idick V Ha]L Ahmed (1886) 10 Bom, J, Re Maroon Mahomed (1890)
14 Bom , 189.

(O ilimedboy v. Ciissiimbhoy (1889) 13 Bom, 534, ovemiliiig 12
Bom 280 llic queblion as. to lii»w lar the Kliojalib duel Memon
Culclots have adopted the rulcb of Hindu law, has hcen mucdi dchati d
in the Bomhd) liigli Couit '^ee especially two leaimd and < xliaustivc
judgmentb of Beaman, J , Jan Mahomed \. Dalu Jaffer (1914) 38
Bom, 419, and idiocate Gene/al of Rombay v Jimbabai (1917) 41
Bom, 181 4hdt learned judge, while accepting the propobilion that
the Khojahs and Memon Cutchet s aie goviinid Ky the Hindu law of
succebbion and mheiitante, thinks it unproved that tiny hav(
adopted the institution of tin* joint family McLeod, J , in Manjaldas

V Abdul Razak (1911) 16 Boin LK, 224, takes the banie view If
it lb coriect It follows that .Mahomed bidick v Haji Ahmed (1886)
10 Bom, 1, was wiongh decided llaji Oosnian v Maroon (1923)
17 Bom, 369 (where it was held that tin ^on of a Cutchi Memon
has no right to claim a partition of ancestral piopeity) See contra

Majee Aboo Rucker v Ehrahim A I R 1921 Mad, 571, 31 M.L.J , 183,
hidahuseui v Rai Monghibai AIK 1936 Bom, 257 (a Khojah can
dispose of his entire property hy testamentary disposition) ; Elia Sait
V. Uharamayya 10 Mys LJ, 33 (Culchi Memons of Mysore).

(a) Rat Baiji v Rat Santok (1896) 20 Bom., 53, at p. 57, Fatesangji

V Rewar Marisangji (1896) 20 Bom, 181. In the latter the claim,
which was affirmed, was by a son for maintenance. Rai Sakar v. Ismail
Gafoor 38 Bom LK, 1034 (Sum Borahs). Some Moplahs of the west
coast, who though Mubsalinans in religion, have largely adopted the
Marumakkatluiyam law It is a question of faet in each case whether
the particular family has done so or not, Assam v Pathumma (1899)
22 Mad, 49L Pakruhi v Kunibacha (1913) 36 Mad, 385, contrast
Kunhirnbi Umrna v. Kandy iMoithine (1904) 27 Mad , 77.

(v) Moosa Maji Joonas Noorani v Abdul Rahim (1906) 30 Bom,
197, Maji4^aboo Sidick v. Ally Mahomed (1906) 30 Bom., 270.

PARA. 59.]

EFFECT OF CONVERSION.

101

should, however, be confined strictly to cases of succession
and inheritance; (4) and that, if any particular usage at
variance with the general Hindu law applicable to these
communities in matters of succession be alleged to exist, the
burden of proof lies on the party alleging such special cus-
tom.” By the Cutchi Memons Act, (X of 1938 ),
which repeals Act XLVI of 1920, all Cutchi Memons are,
in matters of succession and inheritance, to be govern-
ed by the Mahomedan law. Provincial legislation may
be required as to agiicultural land. Cutchi Memons
who had emigrated to Mombassa in South Africa over half a
century ago and settled amongst the Muhammedans there were
piesumed to have discontinued the custom of following Hindu
law in favour of Muhammedan law {w} , Halai Memons of
Porebunder and Morvi in Kathiawar follow Hindu law in
matters of succession and inheritance, differing in that respect
from Halai Memons of Bombay (x) . Now after the Muslim
Personal law (Shariat) Application Act (XXVI of 1937),
howevei. those Muslim communities, who m accordance with
their usages have been governed by Hindu law m many
inatteis, will be governed exclusively by the Muslim Personal
law (Shariat) in respect of all matters mentioned m the Act
and they may also elect under the Act to be governed bv
Muhammedan law in the matter of adoption, wills and
legacies (x^j.

Although the cases above-mentioned may probably be
taken as settling that an adherence to the religion of the Koran
does not necessarily entail an adherence to its civil law, there
may be cases in ^hich religion and law are inseparable In
such a case the ruling of the Privy Council would be stricth
111 point, and would debar any one who had accepted the
religion from lelying on a custom opposed to the law. For in-
stance, monogamy is an essential pait of the law of Christianity.
A Muhammedan, or a Hindu convert to Chi isRianity, could
not possibly marry a second wife after his conversion,
during the life of his first, and, if he did so, the issue by such

{w) Abdur Rahim v. Halimabhai (1915) 43 I.A., 35, 20 C.W.N.,
362, 30 M.LJ., 227.

(x) Khatubai v. Mahomed Haji Abu (1922) 50 I.A., 108, 47 Bom.,
146, Adambhai v. Allarakhia A.I.R, 1935 Bom., 417; Aisha Bee Bee
V. Noor Mohammad (1932) 10 Rang., 461 (Halai Memons of Gondal
and Kathiawar).

(xi) But the Act does not apply in respect of succession to agri-
cultural land in the provinces which will include almost all land
in the provinces, except urban land.

102

EFFECT OF CONVERSION.

[chap. Ill,

Convci&ion

Christianity

second marriage would certainly not be legitimate, any Hindu
or Muhammedan usage to the contrary notwithstanding (y) .
His conversion would not invalidate marriages celebrated, or
affect the legitimacy of issue born, before that event. What
its effect might be upon issue proceeding from a plurality of
wives retained after he became a Christian would be a verv
interesting question, which has never arisen (z). The Muham-
medan law does not lecognise adoption, so the presumption
will be that a Hindu convert to that religion has abandoned
the law of adoption as established by Hindu law and usage
Those who allege that it has been letained, must prove the
retention (a)

^ 60 As It is open to a Hindu by birth to become
a ( onvert to Christianity or Muhammedanism. it is equalh
open to a Christian or a Muhammedan to become a convert
to Hinduism; a fortiori, a Hindu who goes to Christianity or
Muhammedanism is equally free to go back, to Hinduism (b)
Under the Hindu law. apostacy or conversion does not dis-
solve the marriage tie (c) Accordingly, where a Hindu
married woman became a convert to Muhammedanism and
during the lifetime of her Hindu husband married a Muham-
medan and had several children, it was held that the second
marriage was illegal and that the children who were born of
this union were illegitimate ( r/ )

to § 61 . The question whether Hindus who are converted to
Christianity may retain the Hindu law or parts of it has
often aiisen. In Abraham v Abiaham (e) it was made clear
that upon the conversion of a Hindu to Christianity, the

) See Hyde v Hyde LR, 1 P & D, 130, Skinner v Orde 14
M I A., 309. 324, 17 W R , 77

iz) As to tlie validity of second marriages after conversion, set
Emperor v Lazar (1907) 30 Mad, 550, Emperor v Antony (1910)
33 Mad ,371 ,

(а) Bai Machhbai v Bai Hirbai (1911) 35 Bom, 264

(б) Per Holloway, J., in 3 MHCR, VII, Morarji v Admr
Genl of Madras (1929) 52 Mad, 160, 166, Kusum Kuniari v Satya
Ranjan (1903) 30 Cal, 999 (where il was held that along with his
reconversion, his minor son was also reconverted) , Guruswami Nadar
V Irulappa Nadar (1934) 67 MLJ, 389.

(c) Gobardhan IJass v Jasadarnoni Dassi (1891) 18 Cal, 252, 255

id) Budansa Houther v Fatma Bi (1914) 26 MLJ, 260, see also
In re Gedalu Narayana (1932) N W.N., 1082, 1084, A.l R 1932 Mad,
561, In re Ram Kumari (1891) 18 Cal, 264, Mt, Nandi v The Crown
(1919) 1 Lah , 440 (where it was held that the woman was guilty of
bigamy under s 494 of the Indian Penal Code).

(c) 9 MIA, 195, see also Fonnaswami v Doraiswami (1879)
2 Mad, 2Cif5, Sarkies v Prosonomovee (1881) 6 Cal, 794

PARA. 61.]

EFFECT OF CONVERSION.

103

Hindu law ceases to have any continuing obligatory force
on the convert. He may renounce the old law by which he
was bound as he has renounced his old religion or if he
thinks fit, he may abide by the old law, nothwithstanding he
has renounced the old religion (/). If a Hindu after con-
version to Christianity dies intestate, succession to his estate
IS now governed by the Indian Succession Act of 1925,
replacing the Indian Succession Act of 1865. Since the
latter Act, it was not open to a Hindu, as it is not open to
him now, on conversion to Christianity, to elect to be bound
in the matter of succession by Hindu law (g).

In Tellis V. Saldanha ( /? ) it was held that co-parcenership
and the right of survivorship are incidents peculiar to Hindu
law and have no application to Indian Christians aftei the
Indian Succession Act, 1865, though it cannot take away rights
that had vested prior to conversion. The Bombay High Court
dissented from this view on the ground that the rules of law
applicable to intestate and testamentary succession did not
affect the other rights and incidents of a joint family ii).
The Madras High Court in a later case dealing with a Maru-
makkathayam family in Malabar, after considering the
Bombay decision adhered to their view in Tellis v.
Saldanha (/) The Calcutta High Court, referring to this
difference of opinion considered that if all members of a
Hindu family have become Christians, it may be that the rights
of co-parcenership may not be affected by the conversion (k) ,
The convert, in no case, can abide by the entirety of the old
law, for marriage and family relations will be governed by
the new law. The question therefore is whether he could
elect to abide by Hindu law in respect of property, partition

(/) 9 M1.A, 195, 237, 238

ig) Kamawati v Digbijai Singh (1921) 48 I.A , 381, 43 All, 528,
holding Abraham v Abraham 9 M I.A , 195, and Gajapathi v Gaja-
pathi 14 W.R.P C , 33, as no longer applicable after the Act of 18^

ih) (1886) 10 Mad., 69.

(i) Per Jenkins C J. in Francis Ghosal v. Gabri Ghosal (1907)
31 Bom., 25.

(y) Kunhichekkan v. Lydia (1912) 11 M.L.T., 232, G, Subbayya v.
G Rangayya A I.R 1927 Mad , 883

{k) Kulada Prasad v. Haripada (1913) 40 Cal., 407; see also
Muhammad Aliyar v. Gnana Ammal (1934) 66 M.L.J., 671 (where
the matter is discussed but not decided) See the dictum of the P.C.
in Jogireddi v. Chinnabi Reddi (1928) 56 I.A, 6, 52 Mad, 83, 90,
that a convert to Christianity may elect to retain his interest in the
family property on the old footing

104

EFFECT OF CONVERSION

[chap. III.

and cognate matters. It is not easy to see how there can be
an election to abide by the old law except when the whole
family consisting of adults become converts to Christianity
as they may then be presumed to agree to continue as a joint
family. But such a piesuinption cannot possibly be applied
to the second generation as the conti nuance of survivorship
will be incompatible with the piovisions of the Indian
Succession Act relating to intestate and testamentaiy
buecession

CHAPTER IV

FAMILY RELATIONS.

Marriage and Sonship.

§ 62. The origin of marriage amongst Aryans in India Aryan

as amongst other ancient peoples is a matter for the science Marriage

of anthropology. From the very commencement of the
Rigvedic age, mariiage was a well-established institution, and
the Aryan ideal of marriage was very high (a). Monogamy
was the rule and the approved rule, though ^polygamy existed
to some extent. Theie is no real evidence of the existence of
polyandiy and the matriarchate in Vedic times (6). Accord-
ing to Dr. Keith, polyandry is not shown by a single passage
to have existed amongst the Vedic Aryans (c). On the othei
hand, the Vedic rylc expiessly declares that a man may have
seveidl wives but a woman cannot have many husbands (d).

(<7) C 11 1 , Vol 1, 88, Mandlik, 396 The Maliabhaiata (Adi
Parvd, Ch 122) relates how in a primitive age, men and women
behaved like buds and beasts and how Svetakelu, the son of Uddalaka,
established marriage as an institution This is purely a story with an
element of the dtamalio alxnit it. It is disproved by the entire body
of Vedic evidence which establishes the sacredness of the marriage
tie and the tracing of relationship only through the father as well as
the offering of funeral oblations to him anti to his male ancestors.
Svetaketii was not a Kigvedic Rishi, but must have belonged only to
the Biahmana period as Apastamba lefers to him only as an avara or
a person of later tiine»

(6) The feolitary case of Draiipadi m the Epic was an exception
and was so treated at the time. The father of Draupadi was shocked
at the propo'.al of die Pandava princes to marry his daughter ‘ It is
ordained that a husband can have many wives but we have never
heard that a wife can have many husbands You who know the law
must not commit an act that is sinful and opposed to both the Vedas
and the usage ” The reply refers to some transgressions of ancient
sages. (Mahabh Adi Parva, Ch 197) Moreover, the Pandus appear
to have been a Noithern hill-tnbe with peculiar customs, CHI, I,
258. Dr Jolly refers to Apas. (II, 10, 27, 2-4) and Briff (XXVIT, 20)
as containing traces of polyandry or group marriage (Jolly, L & C,
102, T L.L., 155). Ills reference to Apastamba is due to a mis-
conception. Sutra 3 upon which he relies refers to the Niyoga or
remarriage with the husband’s brother which was the earlier form
as explained in the Vedic Index (Vedic Index 1, 477). This is
perfectly clear from the sutra which precedes, and the sutras that
follow sutra 3, and from Apastamba II, 6, 13, 4-10. Brihaspati in
XXVII, 20, refers to practices in other countries and not amongst
Aryans as Dr. Jolly himself admits, (TL.L, 155).

(c) C.HI., I, 88; Vedic Index, I, 478-479.

(d) Aiteraya Brahmana, III, 2, 12; “A woman cannot have two
husbands*'. Taittiriya Samhita, VI, 6, 4, 3, quoted in J. C. Chose,
Hindu Law, I, 828, 829, “While the occurrence of the word Dampathi
throughout the Vedas clearly supports monogamy, other texts support
the sacredness of the marriage tie”. Mandlik, 399; Jolly, 17 & C, 140.

8

106

MARRIAGE AND SONSHIP

[chap. IV,

Family ideal

Again, the most striking feature in the Aryan Hindu system
is the strictness with which kinship is traced through males.
This rule is connected with, if it is not based upon, the
religious system, the first principle of which was the practice
of worshipping deceased male ancestors to the remotest
degree (c). This, of course, involved the assumption that
those ancestors could be identified with the most perfect
ceitainly The female ancestors weie only worshipped in
conjunction with their deceased husbands We can be quite
ceitam that this system was one of enormous antiquity, since
we find exactly the same pi act ice of religious off ei mgs to the
dead prevailing among the Greeks and the Romans (/). We
may assert with c'onfidence that a usage common to the three
races had jiieviously existed in that anc lent stock fiom which
Hindus, Giec'ks and Romans alike piocecded

§ 63. In the Vedic period, the saciedness of the maiiiage
tie was repeatedl) declared, the family ic?eal was decidedl>
high and it was often lealised (g) The wife on her maniage
was at onc'c given an honouicd position in the house. She was
mistic'ss in hei husbancFs home and where she was the wile
of the eldc'st son of the familv, she exercised authority oven
her husband’s brothers and his unmarried sisters She was
associated in all the leligious offeiings and rituals wi4h hei
husband As the old writers put it, “a woman is half hei
husband and completes him” {h) IVIanu, in impressive
verses, exhoited men to honour and lespec t women. “Women
must be honoured and adorned by their fathers, brothers,
husbands, and brothers-in-law who desire their own welfare.
Wheie women are honoured, there the gods are pleased; but
where the> are not honoured, no sacred rite yields rewards”.
“The husband receives his wife from the gods, he must always
support hci while she is faithful”. “Let mutual fidelity
c’ontinue until death This may be considered as the summary
of the highest law for husband and wufe”(i). Disputes

(c) Mann, TIT, 81-91, 122-125, 189, 193 231, 282-284, Spencer,
Sociology, T 304, Appx 1; MaxMuller, AS Lit., 386, Ind. Wisd , 255

(/) See De C'oiilanges, La Cite Antique, passim See Teulon, La
Mere, 62, 63 “Pariout, ou les Aryas se son! etablis, ils ont mtroduit
avec eiix la famille goiivernee par le pc're

(g) Vedic Index, I, 484, 485, CHI, T, 89 “The high value placed
on the marriage is t.hown hy the long and striking hymn”. Rig Veda,
X, 85 “Be, thou, mother of heroic children, devoted to the Gods
Be, thou, Queen in thy father-in-law’s household. May all the Gods
unite the hearts of ns two one ”

ih) Vedic Index, I, 484-6, Manu, IX, 96

(0 May.u, III, 55-76, IX, 95, 101, 102, Yajn , I, 82.

PARAS. 63 & 64.]

THE FOUR CASTES.

107

between husband and wife were not allowed to be litigated
either in the customary tribunals or in the king’s courts.
Neither bailment nor contracting of debt, neither bearing
testimony for one another nor partition of piopeity was
allowed between them(y).

§ 64. Whethei in the period of the Rigveda, the Aryan
society was casteless or not has been the subject of contro-
versy; but before the end of the period eovcied by the hymns
of the Kigvedd, a belief in the divine origin of the four orders
of men, Biahmana, Raj any a or Kshatriya, Vis or Vaisya and
Sudra was fully established (k) . In the period of the Yajur-
veda, these orders had developed into social orders or castes
and mixed castes were also known. According to the authors
of the Vedic Index, the Vedic characteristics of caste are
heredity, pursuit of a common occupation, and restriction on
inter-marriage (/).

Inter-marriage* between persons of different varnais or castes
was certainly not uncommon in the earlier period but, as caste
hardened, the restrictions increased. But from the beginning,
inter-marridges in the ordei of castes (anuloma) weie
ajiparently more frequent than those in the reverse ordei
(pratilorna), till, by the time of the Dharma-sutras and the
Code of Manu, pratiloma mariidges had come to be definitely
forbidden (ml Finally, inter-mariiages between Dvijas
and Sudras were forbidden by Manu and Yajnavalkya (n) .

Re-man lage of widows was apparently permitted in the
Vedic age. This seems originally to have taken the form
of the marriage of the widow to the brother or other near
kinsman in order to produce children (o) Subsequently, a
widow was occasionally allowed to re-mariy in the ordinary
way any other than her brothci-m-law (pj . According to
Kautilya’s Arthasastra (c. 300 B.C.), while marriages con-
tracted in accordance with approved forms could not be
dissolved, divorce could in some cases be obtained by the

(;) Yajn., II, 52, Nar., XII, 89. Jolly, T.L.L., 78.
ik) C.H.L, I, 54, 55, 92-94.

(/) Vedic Index, II, 247-260.

(777) Gant., IV, 25. Baudh , I, 16, 2 to 6; Vas., I, 24-25, Vishnu,
XXVI, 2-6, Arthas, III, 6, 7 (Shamasastri, 201, 203) , Yajn., I, 55, 56,
C.H.L, I, 125, 126; Jayaswal, M & Y, 241, 242.

in) Manu, III, 15 to 17; Yajn., I, 57.

(o) Vedic Index, I, 476, 477; see Asavalayana Grihya Sutra, IV, 2,
13, S.B E., Vol XXIX (page 239) and Rig Veda, X, 40, 2, cited there.

ip) Nar, XII, 97-101, Gaut., XVIII, 15.

Caste,

Intel -
marriage.

Re-mairiagc.

108

MARRIAGE AND SONSHIP.

[chap. IV,

Marriage
tie strict

husband or wife, if they had married in the unapproved form,
as for instance, in the Asura form (/*) . It recognises the
re-marriage of women in certain cases or undei certain condi-
tions ( 5 ). Manu finally disapproves of divorce and re-
man lage. “The husband is declared to be one with the wife.
Neither by sale nor by repudiation is a wife leleased from her
husband”. “Once only a maiden is given in marriage” (O

^ 65. Even from the Vedic age, the standard of female
morality appears to have been fairly high (a). The chastity
of women of dll the foui castes was to be carefully protected
and respected, though the degiees ol punishment depended to
some extent, upoi\ the caste of the ollender (v)

Adultery was a seiious ollence as well as a sin [U pa-
pataka) on the pait of both the wife and the adulterer, both
were punished with seventy and had also to expiate their
sins by appropiiate penances ( j . The unthaste wife was

(r) Aithas, 111, 3, bhamdsastii, 191
(5) Arthafe , 111, 4, Shamdsabtri, 195, 196
(/) Manu, IX, 45 47

in) CHI, 1, 88, Veilic Index, 1, 179, \din, 1, 75 Tlu dicliim
dtlnbiited to Yajnavalk>d in the SaUpdlha Brahnidiid that no one
rarcs whether a wile is unchd'-lt 01 not, has been shown to he a
mistranblation The expression 'Pm ah Piim^ah' means ri'iiioved from
the men who arc sacrihdiig as the wives of the gods aic apail from
them during the parlicular rites (Vedic Index, 1, 397, 480). The
ritual of 1 aruna-Praghasnh, in which the wife ot the sacrihcer names
a lovei or lovers, was part of an expiatory iite for the wife's uiichastiL),
intended to lianish the evil brought on the family by hti fall (Vedic
Index, I, 396, 397, 480)

The statement about Oandhara Brahmin . corrupting and selling
their women contained in former editions of this woik has now turned
out to be a baseless one due to an inteipolation in the Rajatarangini

(Jolly, L & C, 106).
iv) Manu, VHI, 359.

(te) Manu, Mil, 371, Gaut , XXIJI, 14 (death for adulterou*^
wife), Nar , Xll, 91 (shaving and ollu 1 punishment for adulterous
wife), Manu, Mil, 352 (banishment or branding or mutilation for
adulterer) , VIII, 359 (death for adulterer) ; VllI, 372 (death or
torture for adulterei). Mil, 373 (repetition of offence — heavy fine);
VIII, 374, 375 (mutilation and confiscation of property); VIII, 376
(fines) , VII 1, 379 (from tonsure to capital punishment) , XI, 60, 177
(IJpapataka for both), Gaut, XXIII, 15 (death for adulterer), Nar.,
XII, 70 (fine for adultery), Vas , XXI, 8 (penance to be expiated
according to Manu, XT, 118) , Gaut , XXII, 15, 29, 30, 34, 35
(penance for 2 or 3 years) , Gaut, XII, 2 (mutilation or degradation) ,
Brih., XXIII, 1216 (fine, mutilation, death). Secret meetings, flirtings,
etc , were also treated and punished as grades of adultery. Brih ,
XXIII, 6 9, Dr Jha, HLS, 1, 502. Even a man who visited unchaste
women and prostitutes was liable to punishment (Dr Jha, H L.S., I,
note 95, page 502). Yajn , II, 286 (fine) , Vishnu, V, 40, 41, 43, 192,
LIII, 1, 2, 84 Jolly, T.L.L., p 78, L & C, 145, 146

PAKAS. 65 & 66. J THE THREE DEBTS.

109

deprived of authority and was compelled to perforin
penances, being barely maintained (a;) . Both an adulterer and
a son boin of an adulterous wife or widow (Kunda or
Goldka) were excluded from social intercourse as well as
from invitations to sraddhas or ceremonies (y). Where a wife
conceived as a result of adultery, her abandonment was
ordained and she had no claim even to maintenance ( 2 ). At
the same time, prostitution and illicit unions certainly existed
both in the Vedic period and afterwaids, though to what
extent is not clear (a) . The very segregation ol dancers
and prostitutes, while it has focussed attention on that feature,
IS itself an indication that the standard of average sexual
morality was fairly high. The evidence of the whole litera-
ture including the Dharma Sastras leads to that conclusion
This IS confiiined by the fact that Upanishadic teaching had
begun at least in the 8th or 7th century B.C. and that Jainisrn
and Buddhism preached lofty principles of morality and
virtue as early as ihe 6th century B C. Brahmmism, Jainism
and Buddhism, competing with each other and insisting on
nobler ideals and a better life, must have helped, notwith-
standing foreign invasions and domestic turmoils, to maintain
a fair level of morality.

§ 66. The desire for male offspring in particular, was
very natuial in all eaily societies. Male issue was prized both
for the continuance of the family as well as for the peifoim-
ance of funeral rites and offeiings (6). The Veda declares:
‘‘Endless aie the worlds of those who have sons; there is no
place for the man who is destitute of male offspring” “Ma>
our enemies be destitute of offspring”. “0 Agni, may 1
obtain immortalit/ by offspring” fc). According to the Veda,
an Aryan is born burdened with three debts. “He owes the
study of the Veda to the Rishis, saenhees to the Gods, and
a son to the manes:” “He is fiee from debt who has offered

(x) Manu, XI, 177, Yajn , I, 70.

(y) Gaut,, XV, 17, 18, Yajn, I, 222, 224 and the Mitakshara on
Yajn., I, 90, 222; Manu, III, 174, 175

(z) Yajn., I, 72; Vas., XXI, 10; Jolly, T.L.L., 78.

(a) Manu, VIII, 362 (actresses and singers) ; Nar., XII, 78 »
Baudh., II, 2, 4, 3, Arthas., II, 27; Shamasastri, 148-152.

(b) Vedic Index, I, 486, 487, where Drs. Macdonell and Keith say
“But this desire for male offspring was not accompanied by any exposure
of female children”; thus contradicting the opinion of Dr. Jolly in his
T L L at p. 77. For Dr. Jolly’s revised view, see L & C 170 On the
contrary, a daughter was, in the absence of male issue appointed as a
son and had from Vedic times a fairly high position. Vas., XVII, 15.

(c) Rig Veda, I, 21, 5 cited in Vas. XVII, 2-4, Vishnu, XV. 45;
Manu, VI, 36, 37; IX, 45.

Desire onl 5
for aurasa
son.

110

MARRIAGE AND SONSHIP.

[chap. IV,

sacrifices, who has begotten a son and who has lived as a
student with a teacher” id) This desire for male offspring
found extravagant expiession in the later works also. iVIanu
emphasised the Vedic injunction regarding the necessity foi
a son thus: “Through a son, he conquers the worlds, through
a son’s son, he obtains ininiortalitv but through his son's
grand-son, he gams the woild of the Sun Because a son
delivers his father from the hell called Put. he was therefore
called Put-tra (a deliverer fiom Pul) (e) " So also Yajna-
valkya "'Because continuity of the faniilv in this world and
the attainment of heaven in the next aie through sons, son’s
sons and sons* giandsons, therefore women «ihould he loved
and piolecled’' (/).

It IS clear that, from the Vedn age, while the legitimate
son (aurasaj was desiicd both for spiiitual benefit as well
as foi the continuation of the family, adoption of sons
hoin to others, as secondary sons w, is not approved
iJndouhtedly in the Vedic age, there was a tradition from
still earliei times ol the leviiate \Niyoga) and the
adoption of sons citlici iiiegnlaii) boin or hoin to others
Theie ate obscure lefeiences to the Pulrikaputra, to the
Kshetiaja, to the Kanina and a dear reference to the
Dattaka (g) These iiregulai usages were stronglv dis-
approved of in the Veda for it says “() Agni, no son is he
who spiings fiom otheis (//)” “A son begotten of another,
though worthy of legard, is not to be contemplated even in
the mind as fit for acceptance, for, verily he returns to his
house Therefoie let theie come to us a son new born, pos-
sessed of food and victoiious ovei foes” fi). Therefore, while
It IS tiue that the anenent Aryans longed for offspring, thev
ic'cognised at the same time the need for their wives remaining
chaste lalhei than they should have offspiing anyhow' The
emphasis on the need for male offspring was more than

(d) TaiUiriya samhila VI, 3, 10, 5 cited m Vas XI, 48, Manu, VI,
35-37, IX, 106, 107, XI, 66.

(e) Manu, IX, 137, 138, Vishnu, XV, 44, 46. Medliatithi explains
that the hell called ‘put’ is only ‘the name given to the four kinds of
elemental life on the earth’ and that all that is meant is that by the
birth of a son, the father is “born next in a divine life” Jha , Manu
Bhashya, Vol V, 123

(/) Yajn, 1, 78

ig) Rig Veda, Vlll, 46, 21, Vedic Index, II, 17 (The reference is
to the Prthu-Sravas Kanita — the maiden’s son) , Kane, 5 and 6,
J. C. Ghose, 1, 639.

(A) Rjg Veda cited in J. C. Ghose, I, 639.

(i) Kii Veda, VII, 5, 8.

PARA. 67.)

MARRIAGE AND SONSHIP

111

counterbalanced by the emphasis on the need for morality (/).

§ 67. Twelve or thirteen kinds of sons are mentioned bv
the earlier writers: (1) The legitimate son (Auiasal is one

The following table shows the order
in which the different sons are
placed bv the various authors

Aurasa or I

legitimate son |

Kshetraja or

son begotten on wife

Putnkaputra or

son of appointed daughter

Kanina or
maiden’s son

Gudbaja or son
secretly born

Paunarbhava or son I

of tw'ice-married woman J

Sahodbaja or son of
pregnant bride

Dattaka or son I

given 1

Kritnma or 1

son made |

0 -S '
61),
m d 1,
M 0 ,

«-Q|

ui V

Apaviddha or 1

deserted son 1

Sva>amdatta or 1

son selfgiven 1

Nishada or Parasava or 1
son of Sudra wife (d). |

Gautama, XXVIII, 32-33 1

1

2 110(a)

7

• 1

5

9

8

1

3 1

1

12

6

11

Baudhayana, 11, 2, 10-23 1

1

^ i

2 1

8

6

11

9

1

5

10

7

12

13

Apastamba, II, 6, 13 . |

1

—

—

—

—

_

—

—

—

Vasishtha, XVII, 9-21

1

2 1

3

5

6

1

7

8

9

ll

10

12

Harita, Digest IT, 331 |

1

2

5

4

6

3

10

, 7

12

8

9

11

t

Kautilya’s Arthasasira (e) 1

1

3

2

6

4

B

7

' 9

! 11

12

5

10

—

Manu. IX, 158-160

1

3

2 (h)

8

6

11

9

; i

5

10

7

12

13

Vishnu. XV, 1-27 1

1

2

3

5

6

1

7

' 8

9

11

10

12

Yajnavalkya, 11, 128-132

1

3

2

5

1

6

11

' 7

9

8

12

10

-

ISarada, XllI, 15-16

1

2

3

4

6

7

5

9

11

10

8

12

—

Brihaspati, Digest 11,337

Sankha and Likhila, Digest 11, ^

1

8

2

10

12

9

11

3

6

5

-1

7

331

1

2

3

5

6

1

8

: 9

10

7

12

11

Devala, Digest II, 332 (o)

1

3

2

1

5

8

7

9

11

12

6

10

-

\uma, Digest 11, 332

1

2

3

5

6

4

8

1 9

' 10

11

7

12

-

Kalikapurana, Digest II, 333

1

2

_

7

5

10

8

’ 3

4

9

6

11

12

Brahmapurana, Digest 11, 341

1

2

3

7

5

10

8

4

9

6

11

12

Apastamba does not recognise any son except I he aurasa son

Vijnanesvara quotes both Yajnavalkya and Manubut seems to follow the latter as to the order ol
sons: Mit. I, XI, 30-31

Jimutavabana follows Devala Daya Rhaga X, 7 The Smntichandnka follow^s Mann Ch X

(a) Mitakshara (I, XI, 35) explains the low position assigned by Gautama to the son ot an
appointed daughter as being relative to one differing in tribe

(b) Manu mentions the aurasa and the appointed daughter's son together as ot equal status and
then mentions the aurasa and the eleven secondary sons, altogether thirteen sons

(c) See an explanation offered of Devala’s text Puddokumaree V luggut Kishore, (1880)5 Cal.

615, 630

{d) As to Nishada or Parasava, see Mit. on Yajn 1,91

(i») Arthas, 111, 7 (Dr Jolly’s edn ), Shaniasastri 203

(/) “Many thousands of Brahmanas who were chaste from their
youth, have gone to heaven without continuing their race.” “A virtuoii*-
wife who after the death of her husband constantly remains chaste,
reaches heaven, though she has no son, just like those chaste men.”
Manu, V, 159, 160. See also Vishnu, XXV, 17.

112

SECONDARY 5»ONS

[chap. IV,

Different
kinds of

AiiraM

begotten bv a man upon his lawfully wedded wife. (2)
sons, appointed daughter ( Putrikaputra) . (3) The

son of the wife (Kshetraja) is one begotten upon a man’s
appointed wife or widow by his brother or near kinsman.
( 1) The son secretly born (Gudhaja or Gudolpaiiiia) is the
son born m a man’s house to his wife when it is not ceitain
who the father is (5) The maiden’s son (Kanina) is the son
born to an unmairied girl in her fathei’s house before hei
maiiiage. (6) The son of the pregnant bride (Sahodha) is the
son born to a woman whom one, while she is piegnant, know-
ingly oi unknowingly inairies (7) The son of a twiee-married
woman (Paunarbhava ) . (8) The son given (Dattaka)

is the son whom ins father or mother gi\es in adoption. (9)
The son made (Kiitiinia) is the son whom a man himself
makes his son with the adoptee’s Lonsent only. ( lU) The son
bought (Kiila) is one sold b\ his lather and mother or
either. (11) The deseited son (Apaviddha) is one who having
been discarded b\ his fathei and mother is laken in adoption
(12) The son self-given (Svavamdatta ) is one, who, bereft of
fathei and mothei oi abandoned by them, presents himself
saving ‘Let me become thv son’ and (1,)) The Nishada or
Paiasava is the son of a Biahnim 1)\ a Such a wife (A).

68 An aurasa or legitimate son is delined by Manii as
one ‘whom a man begets on his own wedded wife’ (/) Ills
commentator Kulluka t\\plains this as red erring to the son
that the man himself begets on his wife, maiiicd as a virgin
He IS supported bv the rule in Manu “The nuptial texts are
applied solely to virgins and nowheie among men, to females
who have lost their virginitv, for such fem^iles are excluded
from leligious ceremonies” {in} Yajnavalkya's text and its
interpietatioii by Vijnanesvara make it still clearer (n) .
Therefore, piocieation as well as birth in lawful wedlock was
necessary to constitute the son as an aurasa son in the
strict sense , The decision of the Privy Council in Pedda

(A) Gant, XXVIII, 32, 33, Baudh , II, 2, 3, 14-30, Apa^ , II, 6, 13,
1 II, Vas, XVII, 9-22, Vishnu, XV, 127, Manu, IX, 127-140, 158-184,
Yajn, II, 128-132, Nar, XIII, 17-20, 45 47, Mitakshaia, I, xi

(/) Manu, IX, 166, Yajii , II, 128, Mit , I, XI, 2

(m) Manu, \III, 226

in) Mit on Yajn, I, 52 “One who has not been accepted by anv
other man either by way of gift oi enjoyment” ( Vidyarnava’s trans ,
p 93.) Vis^arupa and Apararka cited in Jha, H L S , II, 175-176,

PARAS. 68-70.]

PUTRIKAPUTRA.

113

Ammani v. Zamindar of Marungapuri (o) that Hindu law
^oes not require procreation, as well as birth, after marriage
io render a child legitimate is now binding as law; it is the
-only convenient and sound doctrine in modern Hindu law.
The rule that the nuptial texts should be confined to virgins
was not an imperative rule of law but only a moral precept,
for re-marriage of widows and marriage of maidens who were
not virgins at the time of marriage, such as those who had
already a son or who were pregnant at the time of marriage
were expressly permitted, though disapproved, and no other
form of marriage is provided for non-virgins (p). But,
historically, the son born to a woman who was not a virgin,
at her marriage, was, though legitimate, not an aurasa son
in the technical sense.

69. Equal to an aurasa son is the son of the appointed
daughter who is a son born to a daughter after her appoint-
ment by her father to continue his line. Her son became
the son of her father if he had no male issue; and he became
so not only by agreement with her husband but by mere inten-
tion on the part of her father without any consent asked for
^or obtained. Hence a man was warned not to marry a girl
without brothers, lest her father should take her first son as
his own (</). Vasishtha quotes a text of the Veda as showing
that ‘the girl who has no brother cornea back to the males of
her own family, to her father and the rest. Returning, she
becomes their son’ (r). According to Vasishtha, the appoint-
ed daughter herself was treated as a son ( 5 ). According to
Yajnavalkya, as interpreted in the Mitakshara, the term
^pulrikaputra’ is equally applicable to the son of an appoint-
ed daughter or to the daughter herself, becoming by special
appointment, a son (t) , The status of the pulrikaputra was
that of a son’s son, and being the nearest cognate he was a
specially adopted son.

§ 70. The status of the remaining eleven sows was nothing
like that of a legitimate son or a putrikaputra. They were
only secondary sons taken in order to prevent a failure of the

io) (1874) 1 I. A., 282, 293. This view of the Privy Council is
^fuestioned by Sir Gooroodass Banerjee, M & S, 5th ed., 176-177. See
.also Aiti Kochuni v. Aidew Kochuni (1919) 24 C.W.N., 173, 175.

(p) Manu, IX, 172, 173, 175.

{q) Gaut., XXVIII, 19. 20; Manu, III, 11; Yajn., I, 53.

(r) Vas, XVII. 16
is) Vas., XVII, 15.

(i) Mit., I, xi, 3.

9

Putrikapiilra.

Secondary

sons.

lU

MARRIAGE AND SONSHIP.

[chap. IV,

Paunarbhava

Nishada or
Parasava.

funeral ceremonies (u). Manu calls them bad substitutes
for a real son and graphically compares the position of the
man who attempts to secure salvation through them to the
position of one who tries to cross a sheet of water in an unsafe
boat (v). The adoption of any one of them could only be
made in the absence of the legitimate son

Amongst them, the son of the re-mar ried wife and the soir
of the Sudra wife were, of course, a man’s own actual sons,
just like the aurasa son, though they were of inferior status.

§ 71. The son of a re-married woman (paunarbhava) is
one begotten by a man on a twice-married woman whether
the first marriage* had or had not been consummated (n ) .
According to Vasishtha, he ranks next after the kshetraja and
the putrikaputia (a). As the re-marriage of woman was
disapproved (y), her son was not in the strict sense an aurasa
son. He was not fit to be invited to sraddhas nor was he
worthy of social intercourse (z) . Now, after the Hindu
Widows’ Re-marriage Act (XV of 1856), her son has, of course,
the full status of an aurasa son and presumably, out of
abundant caution, the legislature has made the ancient
nuptial texts applicable to the re-marriage of widows (a).

§ 72. The son of a Brahmin by his Sudra wife was called
the Nishada and to distinguish him from the members of the
Nishada caste who are born in the reverse order of castes,
he had an alternative name ‘Parasava’ (b) . Though he was
an aurasa son in the etymological sense, he was not one in
the legal sense and was therefore entitled only to a tenth

(//) Manu, IX, 180

(r) Manu, TX, 161, “As in default of ghee, oil is admitted hy tin
virtuoub as a sulisiitule at sacrifices, so are the eleven sons admitted as
substitutes in default of a legitimate •‘on of the bod> and of an appoint! d
daughter” Briii , XXV, 34

(tc) Manu, IX, 175, 176, Yajn , 11, 130, Mit , I, xi, 8, Va«^ , XVll,
72, 74

(r) Vas , XVII, 18-20, Baudh , II, 2, 3, 27, and IV\ 1-16, these
refer to the paunarbhava as the son of a woman, who ahandontd by
her husband and having lived with others, reenters his family or of a
woman who leaves an impotent, outcaste, or a mad or dect a^ed husband
and takes another husband.

(y) Manu, IX, 65, V, 162, Cant, XXVIll, 33.

(z) Mit, on Yajn, I, 90, 222-224 (betlur ed , 64, 65, 117-149) , and
Mit , 1, XI, 39, Gaut , XV, 18.

(а) Section 6.

(б) Mit. on Yajn, I, 91, Vidyarnava’s trans 190, Manu, IX, 178;
Gaut., IV, 16. Baudh., I, 17, 3 and 4, II, 2, 3, 29-30, Vas, XVIII, 9, 10.-

PARAS. 72-74.]

SECONDARY SONS.

115

share, even on failure of other male issue (c). Jimutavahana
says that the Parasava of Manu is the son born to a Brahmin
by an unmarried Sudra woman and he takes the Nishada to
be a son born to a Brahmin by his Sudra wife, entitling
him, if an only son, to a third part of the inheritance (d).

§ 73. The five sons, the son given, the son bought, the Formally
son made, the deserted son, and the son self-given, are all
adopted sons, different names being given to them only to
mark the differences in the modes or circumstances of their
actual adoption. There is nothing puzzling about these sons
being legarded as sons by adoption, though of inferior status.

Adoption was not peculiar to ancient Kindii law. It was
known in other countries, especially in ancient Rome (e).

Of course, the adoption of anyone of these sons was due in
part to secular reasons and in part to the need for someone
to perform funeral rites. A sonless man would find himself
without protection or assistance m sickness or old age and
would not like to see his property passing into the hands of
distant relations.

§ 74. The remaining four sons, the Kshetraja, the Kanina.
Sahodhajd, the Gudhaja and the Kanina present, at first sight,
an anomaly in connection with the ancient Hindu Family Law.

“A maiden’s son or Kanina is the offspring of an unmarried
woman by a man of equal class and he is son of his maternal
grandfather, provided she be unmarried and abide in her
father’s house but, if she be married, the child becomes son

(c) Manu, XI, 154, Mit , I, xi, 41.

{d) Dayabhaga IX, 24-28.

(e) In Rome, there were both the adoption of a hlius-familias and
the adrogation of a pater-faniihas. When a films fafiiihas was lians-
ferred by his father into the potestas of the adopter or when a pcr'^on
gave himself in adrogation, it not only extinguished the patriapolestas
where it existed but the bond of agnation to all those who had
previously been related to him as agnates was severed. There was no
longer any right of succession between him and them on intestacy.
After the amendments by the Justinian Law, adoption was no longer
followed in all cases by a change of family for the adoptee, but only
when the adopter was in fact one of his parents, such as a paternal
or maternal grandfather. Muirhead ‘‘Historical Introduction to the
Private Law of Rome” 27, 118, 378. Even in Modern England, adoption
has been introduced by statute in respect of certain matters and subject
to certain conditions. In respect of the specified matters, the adopted
child stands in the position of a child born to the adopter in lawful
wedlock. See the Adoption of Children Act, 1926 (16 and 17 Geo , 5,
c. 29) b. 5; 17 Hals. 2nd ed., para 1416.

U6

MARRIAGE AND SONSIIIP.

[chap. IV,

Gudhaja.

of her husband’’ (/) . The case of the Kanina or the maiden’s
son offers no problem whatever: a man marries a well dowered
maiden who has already a child. It is nothing but the
adoption of a step-son. The Kanina was disapproved because
he was not begotten by the husband.

S 75. As to the Gudhaja or Gudotpanna, Manu’s defini-
tion (g) evidently refers to a case where it could not be
established that the son was born of an adulterous connection
but where suspicion arises afterwards. The Dharmasutra of
Baudhayana, which is earlier than the Code of Manu defines
a Gudhaja as one who is secretly born in the house and
whose origin is , afterwards only recognised (h). The
Gudhaja was apparently a son born to a woman while the
husband had access to her; he is at first recognised as his
son and the necessary rites performed on that footing;
afterwards suspicion arises as to his paternity but there
is no proof that he is born to another. No doubt,
commentators, writing several centuries after these subsidiary
sons had become obsolete, refer to him and the son
of the pregnant bride (Sahodhaja) as sons born of an
adulterous connection. That their view is erroneous is
established by three important considerations. In the first
place, sons born to a man’s wife of an adulterous connection
were expressly declared as disentitled to inherit and they were
known as Kundas(i). In the second place, there was no
necessity for the rules and restrictions regarding the Niyoga
or authorisation of the wife and the kinsman, during his life-
time to raise up issue for him, if sons born to his wife of
adulterous connection with another, without any authorisation,
were entitled to the status of secondary sons. In the third
place, where a woman conceived as a result of adulterous
connection, her repudiation or abandonment followed (y) .
The Gudhaja therefore was not the son born of proved
adultery (p) ; it was a case of doubtful paternity where the

(/) Mil., I, xi, 7; Yajn.. II, 129; Gaul., XXVIll, 33; Baiidh., 11,
2, 3, 24; Vas., XVIT, 21-23, Vi«;hnu, XV, 10-12; Manu, IX, 172; Nar.,
XIII. 18.

(g) Manu, IX, 170.

(A) Baudh., IT, 2, 3, 22; Yajn., II, 129; Gant., XXVllI, 32; Vas.,
XYII, 24; Vishrtii, XV, 1314; Nar., XIII, 45.

ii) Mana, III, 174; IX, 143, 144, 147;/'Smritichandrika, V, 12-14.
Mit. on Yajn., I, 90, Vidyarnava’s trans. 184-185; Jha., H.L.S., II, 99-100.
(/) Yajn., I, 72; Vas., XXI, 10; Parasara, X, 30; Jolly, T.L.L., 78.
(y^) 1 his view is confirmed by the high position accorded to him by
all the more ^ancient Smriti writers including Manu.

PARAS. 75-77.]

SECONDARY SONS.

117

husband might be, or was presumed to be, the father as he
had access to the wife. Accordingly, if he was suspected to
be not an aurasa son, since he had been recognised, he would
certainly be an adopted son.

§ 76. As to the Sahodhaja, where a man marries either Sahodhaja.
knowingly or unknowingly a pregnant maiden, the child in
her womb belongs to him who weds her (A) . Here, there is
no reference to a son begotten by another upon her. Very
probably, this contemplates a case where a man, before his
marriage with a maiden, had access to her (/). The reference
to his knowledge of her pregnancy as one possibility makes
this inference almost certain. The son ol* the pregnant bride,
having been begotten in violation of the law. she not having
been a virgin at the time of marriage, was not his aurasa son
and therefore could only be adopted by him as a secondary
son. Even on the alternative assumption that the Sahodhaja
might have been procreated by another, it would simply be
a case of adoption as m the case of the Kanina (/^). Of
course, the Gudhaja and the Sahodhaja would now attract
the very strong presumption of legitimaiy laid down in
section 1 12 of the Indian Evidence Act.

§ 77. The Kshetrajd or son of the wife undoubtedly Kshclraja.
ranked high in the list of subsidiaiy sons Where the wife
of a dead man or of one impotent oi incurably diseased was
duly appointed, according to the law of the family
{svadharma ) , the son begotten on her by the brother or other
sapinda of her husband, autlioiised bv the family in that
behalf, was called the Kshetraja or the son of the wife (m).

The Niyoga usage was only a paiticular illustidtion of the
very general Icvirate prevalent at one time amongst many
ancient peoples (n). In ancient India, wherever it existed.

{k) Manu, IX, 173; Gaut., XXVIII, 33; Baudh.,*II, 2, 3, 25; Vas.,
XVII, 27, Vibhnu, XV, 15-17.

(/) See Sethu v. Palam (1926) 49 Mad, 553, 558, per Devadoss, J.

(/i) See the comments of Sri Krishna and Achyula on Dayabhaga,
X, 7, where they take a Sahodha as ‘a son received for adoption’.
Stokes, H L.B., 300.

im) Manu, IX, 59, 167, Gaul., XVIII, 4-14. XXVIIT, 32, Baudh.,
II, 2, 3, 17; Apas., II, 6, 13, 4-5. Vas, XVII, 14; Vishnu, XV, 2, Dr.
Buhler’s trans. of Svadharma as ‘peculiar’ does not bring out its full
meaning.

(n) Dr. Jolly says: “Recent researches have proved it to be a widely
spread custom, occurring amongst many nations which have never
practised polyandry. Distinct traces of Us former existence have been
discovered, e.g, in the old laws of my own country, G»*rniany.'* T.L.L.,
155.

118

MARRIAGE AND SONSHIP.

[chap. IV,

it was hedged round by many restrictions. The practice
was confined to cases where the husband was either impotent
or diseased or dead and where the wife or widow had been
authorised either by the husband during his lifetime or, after
his death, by the members of the family.

It appears therefore that only when according to the older
law, she was entitled to divorce him and remarry, or to
remarry on his death, this usage existed. Obviously, its scope
must have been very limited and the practice must have been
exceptional. There was first the necessity for a special
appointment both of the woman and of her husband’s brother,
sapmda or kinsman '(o). Onerous conditions were imposed so
as to ensure that the begetting of the son was the sole
object (p). This usage must have resulted as a compromise
between the competing claims of the widow on the one hand
and the joint family on the other (^). The son born to an
unauthorised wife or a widow, as a result of ‘adulterous con-
nection with her brother-in-law or other relation and the son
born to her, though she was authorised, when she had already
a son, were equally disentitled to inherit, so also the son of an
appointed wife or widow begotten by her through her
brother-in-law or his sapmda, through desire or in a manner
contrary to the rules of Niyoga, was disentitled to inherit (r).

The Vivada-Ratnakara and the Viramitrodaya cite a jiassage
from the Brahmapurana which probably gives the clue to the
exceptional recognition of the Kshelraja and other secondary
sons. The Kshatriya class was always engaged in warfare
and was gradually perishing and was therefore held to be
labouring under a curse. The families of chiefs and princes
either suffered or were threatened with extinction; when thev
had neither the legitimate son nor the putnkaputra, they had
sometimes these sons, namely, the Kshetraja and the rest.
“All of them performed, in the manner of servants or slaves,
their sradhs on specified occasions” (a). Though it cannot
be said that the usage, when it existed in ancient times was
conhned to the Kshatriyas (t) , it is clear that the practice
was very exceptional. Manu's reference to svadharma of

(o) Vas, XVII, 56, Jolly, TL.L, 153.
iff) Manu, IX, 60-63.

(^) Vas, XVII, 65.

(r) Manu, IX, 143, 144, 147.

is) Vivada-Ratnakara, 74, 75, Viramitrodaya, Setlur trans., 365.
Arthas., I, 17, 52, Shamasastri, 37.

(/) Arlhasf III, 6, 33.

TARAS. 77-79.]

SECONDARY SONS.

119

rthe man for whom the issue is raised in IX, 167 indicates that
it was only a usage in particular tribes or families (u). If
the usage was at all common or favoured, it would not have
rbecome obsolete.

^ 78, Manu divides these twelve sons into two classes. Two-fold
The legitimate son, the son begotten on the wife, the son classificatioii
given, the son made, the son secretly born and the deserted
son are said to be the six heirs and kinsmen. The maiden’s
son, the son received with the bride, the son bought, the son
of a remarried wife, the son selfgiven and the son of a
Sudia wife are not heirs but kinsmen (t;). Gautama and
Baudhayana give the same classification (w). Vasishtha,

Harita and Narada give a different classification (rr). Yajna-
Vdlkya’s order differs from that of Gautama^ Baudhayana and
Manu. None of the classifications is founded on any intelli-
gible piinciple. The Arthasastra of Kautilya, however, states
<i rational rule: while a son begotten by oneself (aurasa
*oi svayamjata) can claim relationship with him and his
kinsmen, a son begotten by another {parajata) can have
relationship only with the man who accepts him as son (y),

79. Dr. Jolly thinks that the majority of the twelve
kinds of sons have no blood relationship to their father and
some of the twelve are the offspring of the mother’s illicit
connection with strangers and the^se constitute the most striking
feature of the Indian Family Law. He traces this partly to
the doctrine of spiritual benefit found in the Smritis and
partly to an economic motive to get for the family as many
workers as possible (z). The latter observation erroneously
assumes that a man was permitted to have at the same time
all the twelve kinds of sons. But it was only in the absence

Dr. Jolly’s
reasons for
secondary
sons.

ill) “Rise up, come to the world of life, O woman. Thou best
'here by one whosse soul has left him, florae, thou bast now entered
upon the wifehood of this, thy lord, who takes thy hand and woos
thee” Rig Veda, X, 18, 8.

This stanza from the funeral hymn is addressed to the widow who
is called upon to rise from the pyre and take the hand of the new
husband, doubtless a brother of the deceased, in accordance with the
ancient marriage custom. Macdonell, S Lit., 126.

iv) Manu, IX, 159, 160.

iw) Baiidh , II, 2, 3, 31-32, Gaul., XXVIII, 32-33 (except as to
putrikaputra) .

(x:) Vas., XVII, 25-27; Hanta in Digest, II, %331, Nar., XIII, 45, 46.

(y) Svayamjatah kntaknyayam aurasah. Svayamjatah pitrubandhti-
jnam cha dayadah, Parajatah samskartureva, na handhunam. Arthas.,
HI, 7, 4, 13-14 (Jolly’s ed.).

(z) Jolly, L & C, 156, 157, also 107.

120

MARRIAGL AND bONSHIP.

[chap IV^

of the legitimate issue, that anv one of the secondary sons
was adopted. A man might have many aurasa sons by
several wives of the same caste or in the direct order of
castes. It appears that fathers cast off their sons or sold or
gave them in adoption. The economic motive to get as many
workers as possible does not therefore require furthei exami-
Only two nation. The truth is that there were onlv two kinds of sons,
the aurasa and the adopted son The list of twelve or thirteen
sons was obviouslv due to the systematising habit of Sanskrit
writers.

As already mentioned, neithei the Kshelraja son nor the
institution of adophon was peculiar to the ancient Hindu law\
While five out of the twelve were foimallv adopted sons, the
Putrikaputra and the Kanina were in intention, adopted sons,
and the Paunarbhava and the Nishada oi Paiasava weie one's
actual sons. We are onlv left with the Gudhaja and the
Sahodhaja sons who were in all piobabilitV, either a man’s
own sons or, adopted by him if born to others, probably
because the wile’s adulteiv was difficult of pi oof oi possibly
owing to complaisance or (ompassion Such cases must
have been exceedingly raie and cannot suppoit an\ geneialisa*
tion about the ancient Hindu family Law

§ 80 . Dr. Jolly's solution of the pioblem which he sets
up is that the son was always assigned in law^ to the male
who was the legal owner of the mother 111 is does not appear
to be quite a correct oi an adeejuate explanation. A fiequcnl
subject for dist ussion in Manu and othei woiks is as to the
property in a child: ‘Thev all sav that the male issue of a
woman belongs to the loid, but with lespect to' the meaning of
the term ‘loid’ the revealed texts diffei , some (all the begetter
of the child the loid, otheis d(M laie that it is the owner
of the soil” (a). Manu starts the discussion b\ stating the two
opposed opinions and after balancing them, he states in verse^
55 his first positive com lusion that the owners of animals,
birds and slave girls are also the owners of their offspring, he
then discusses the niyoga, the rights and duties of wives and
sons, and the thirteen sons No definitive conclusion as regards
the ownership of sons amongst the Aryans as distinguished
from the offspring of slave girls, animals and buds appears
to be reached by him till he comes to verse IX., 181 , whi^re
he states his specific relevant conclusion • ‘“those sons, who
had been mentioned in connection with the legitimate son
of the body, being begotten by strangers, belong, in reality,

(a) Manu! IX, 32, 33, 44

PARA. 80 .]

SECONDARY SONS.

121

to him from whose seed they sprang but not to the other man
who took them” (6). Referring to the Kshetraja, Baudha-
yana says that such a son begotten on a wife has two fathers
and belongs to two families. “He shall give the funeral
cakes to his two fathers and pronounce two names with each
oblation and inherit the property of his two fathers” (c) .
The Arthasastra of Kautilya says that “some teachers say
that the seed sown in the field of another belongs to the
owner of the field. Others hold that the mother, being only
the receptacle for the seed, the child must belong to him from
whose seed it was born. Kautilya says that it must belong
to both the living parents. On the death of* the begetter, the
Kshetraja son will be son to both the fathers, follow the gotras
of both, and take the property of both” (d) . Yajiiavalkya
follows Kautilya: “A son begotten by a sonless man, having
permission to that effect, on the wife of another, will be right-
ful heir to the properties of and the giver of funeral balls to
both the real and the reputed father” (e) .

The probable explanation therefore appears to be that,
with the exception of the Kshetraja son, who was sui generis,
a son born of the wife’s adulterous connection was not in
law the son of the husband. If either the mother of
the child or the child was not cast off, the child had to
be fitted into the legal system for purposes of maintenance
and guardianship. The son had also to be fitted into
the religious system and the question for which set of
manes (pittus) he had to offer the funeral oblations had
to be solved. The ingenuity of ancient Hindu lawyers
was exercised in* attempting to solve it. In the case of
offspring begotten by another, the son was assigned to the

(b) Verses IX, 48 to 54, appear to be only an, aithavada to
discourage the adulterer by telling him that he will get no advantage
by begetting offspiing on others’ wives. The prima facie view which
is stated in verses 48 to 54 is refuted in verse 181. Accordingly, the
earlier interpretation was that those described as substitutes should not
be appointed, “because, being born of the seed of another man, they
are the sons of that man and of none other; i.e., they cannot be the
‘sons’ of the man that appoints them.” (Dr. Jha, Manu with Medhattillu’^
Bhasya Vol., V, 160). The attempts made by Medhatithi ^^and other
commentators to reconcile the texts are not convincing.

(c) Baudh., II, 2, 3, 18-19.

id) Arthas., Ill, 7, 1-7 (Jolly’s edn., page 96) , Shamasastn,
201 - 202 .

(e) Yajn., II, 127; Mit , I, x; see Nar., XIII, 23; conipar# Manu, IX.
143, 144, 147, 191.

Probable

explanation

122

No spiritual
benefit from
irregular sons.

Farly

disapproval.

MARRIAGE AND SONSHIP. [ CHAP. IV,

begetter or to the husband of the mother, if he adopted him,
or to both in the peculiar case of the Kshetraja (/).

§ 81. It IS beyond doubt that, so far as spiritual benefit
was concerned, there was none to the husband from the issue
of his wife’s adulterous connection. The assumption

sometimes made by modern writers on Hindu law, that,
as the first duty of a man was to become the possessor of
male offspring, either the Veda or the Dharmasaslras
directed him somehow to procure a son, even though such
a son was born to his adulterous wife, is wholly baseless (g).
On the contrary, far from declaring these sons, the
Kshetraja, the Gudhaja, the Sahodhaja and the Kanina, to
be necessary for a man’s spiritual benefit, they emphatically
condemned, for that very reason, the acceptance of such
secondai\ sons(/i) As mentioned already, even in
the Rig Vedic age, their acceptance wa^ disapproved (i)
Aupajandhani, one of the teachers of the White Yajurveda
mcnlioned in the Satapatha Brahmana, declared that the
aurasa son alone was entitled to inherit and was a member of
the father’s family, on the ground, that in the other world, the
son belonged to the actual begetter, stressing the view that
no spiritual benefit was obtainable through irregularly pro-
duced sons (;).

In the Sutra period, Apastamba (( 6th centiir\ B.C.) ,
condemned the Kshetraja and the other sec ondai v sons in
unequivocal language: “If a man approaches a woman
who had been married befoie oi was not legallv married
to him, they both commit a sin Th tough jheii sin, the son
also becomes sinfuV^ After citing Vedic authoritv to the
effect that the son belongs to the begetter in the next
world and would confer no benefit on the husband, he
concludes with the pronounc'ement that if the marriage vow
is transgressed, both husband and wife certainly go to hell.

(/) To guard agaiiibt his mother having even conceived illicit desires,
a son had to recite a text see Manu, IX, 20 and Medhatithi and
Kulluka on it.

(g) The arthdvadas in the books on the point do not refer to sons
procured in violation of the sacred law Mil , on Yaj^i, T, 90, Vidyar-
nava’s trans. 184-185.

{h) See Sarkar Sastri, Adoption, 2nd edn , 47

(i) Rig Veda, VII, 4, 7 and 8.

(;) Aupajandhani, quoted with approval by Baudhayana, II, 2, 3,
33-35, he is also mentioned in the Brihadaranyaka IJpanishad, II, 6, 3;
IV, 6, 1, ^Hume’s trans, ‘The Thirteen Principal Upanishads’ pages
106, 148).

PARA. 81.]

NIYOGA OBSOLETE.

123

^‘The reward in the next world resulting from obeying the
restrictions of the law is preferable to offspring obtained m
this manner by means of yVijoga” (A). It is obvious that
the Niyoga usage had come to be treated with much contempt,
as a flagrant violation of Dharma, and as absolutely worthless
from the point of view of spiritual benefit.

When we come to Manu, he prohibits the Niyoga
altogether: ‘"By twice-born men, a widow must not be
appointed to co-habit with any other than her husband; foi
Xhey who appoint her to another man will violate the eternal
law” (/) . Referring to the fact that in the sacred texts
which refer to marriage the appointment of widows is
nowhere mentioned, he explains that this practice, which is
reprehended as only fit for cattle, is said to have occurred
^ven amongst men, only when the mad King Vena ruled (m).

The condemnatPon from such ancient times shows that
it could not have been at any time a widely prevalent
usage, but must have been limited to a few tribes or Usage
families. The hopeless confusion and contradiction which exceptional,
prevail amongst the writers as to the respective rank of these
sons and the shares to which they were entitled and on the
question which of them were kinsmen and heirs and which
of them were kinsmen only, make it very probable that they
were not dealing with any living institution but were merely
>iiiscussing for completeness the tradition of a bygone age,
the exact scope and meaning of which were not within their
own knowledge. The Kshetraja, the Gudhaja, the Sahodhaja
and the Kanina therefore, even in the period of the Dharina-
sutras, could have been little more than stray survivals of
pre-vedic usages. They must have fallen into great disrepute
and if they were not wholly obsolete, must have become Obsolete,
obsolescent (/?) . Notwithstanding the condemnation by

(A) Apas, IT, 6, 13, 4-10; II, 10, 27, 6-7; see also Vas, XVII, 0.
Apaslambd says “Transgression of the law and violence are found
among the ancient sages; they committed no sm on account of the
j'realness of their lustre. A man of later times who seeing their deeds
follows them, falls.**

(l) Manu, IX, 64, Dr. Jayaswal says* “In many respects, the Code
•of Sumati Bhargava (Manu) was a distinct reaction. But on marriage,
the Code was a factor for raising its status to a sacrament — ^a moral
ideal of the highest type. The Code rescued it from contract which
in the last analysis resolved into a sale.” Jayaswal, M & Y, 231.

(m) These verses containing the prohibition are not, according to
Dr. Buhler, a modern addition. Manu, IX, 66-68; note at p. 338,
S.B.E., Vol. XXV.

(n) See Meenakshi v. Muniandi (1915) 38, Mad.. 1144,^1148. per
Seshagiri Iyer, J., citing Chose, 1, 637.

124

MARRIAGE AND SONSHIP

[chap. IV,

Baudhayana and Apastamba, instances might have occurred
here and there in Kautilya’s time (c. 300 BC.), whose very
meagre treatment of the subject is in proportion to its dimi-
nished importance. Finally, any such practice, if it existed
at all before the compilation of the Code of Manu, must have
been put an end to by it (c. 3rd or 2nd Century B C ) .

Apait from the obvious reasons for the several secondary
sons having fallen into desuetude, the great influence of the
Dharrnasastias was wholly directed towards their disconti-
nudiue. Following Manu, Biihaspati says that the various
sons including the Kshetraja cannot now be adopted by men
of the present age (o). Vijrianesvara says that the appoint-
ment to raise up issue is reprobated in law as well as in
popular opinion (p) and according to him, sons born of
adulterous connection like the Kanina, Sahodhaja, etc , are
born in violation of the law and aie theiefoie illegitimate and
not of the same caste {asavai nas) , unfike the authoiised
Kshetraja (^j Apararka quotes a tevt of Saunaka that
the diffeienl (lasses of sons other than the aurasa and the
dattaka are not recognised in this age(/). The Smiiti
(]handrika. the Parasaramadhav lyani, the Subodhmi, the
Vvavahara iVlayukha and the Dattaka Miinamsa — m fact, all
the later enters aie to the same eflect ( 5 ) Dr Jolly says
that the custom of A /yoga was obsolete even m the lime of
some of the oldest Smriti wi iters [t)

The view which is fiecjuenlly stated f/c) that the docliine of
spiritual benefit was lesponsible foi the institution of the
Kshetraja and other irregularly born sons is iheiefore seen to
be wholly opposed to the evidence of legal histoiy On the
contrary, the Kshetraja and the Kanina — and, if we follow the
lalei commentators, the Gudhaja and the Sahodliaja also —
were merely ancient customary affiliations, due to entirely
secular reaspns, but as they could not be filled into the Aryan

(o) Brih, XXI\, 12, 14

(p) Mit, 11, 1, 18

iq) Mit on Ydjn, I, 90, Vidyarnava’s trans , 184-186
(r) Apararka, Iranb, m 21, MLJ. (journal), 305.

(a) Smriti (’handnka, X, 5-6, Parasara Madhaviya, Setlur Irans,.
332, Siibhodhini, 710 (Setlur edn G V Mayukha, IV, 4, 46 (Cdiaipiire’u
trans, 65), Nirnaya Sindhu, 195 (Nirnayasagar edn), Dharina
Sindhu, 111, 4 (Bombay edn), Dattaka Mimamsa, I, 64 68, Dattaka
Chandrika, I, 9, Digest, II, 416, citing Aditya purana

(/) Jolly, TLL, 164

{u) for instance, Amarendras case (1933) 60 I. A., 242, 248,.
12 Pat., 642.

PARAS. 81-83.]

SECOND \RY SONS OBSOLETE.

12S

religious system which was getting highly developed, they
were rejected and the Manava Dharmasastra was able to
complete this reform at an early stage in the development
of Hindu law, not only by its great authority but also by
elevating the position of the son given to a high place (i;).

§ 82. Of all these twelve or thirteen sons, except the
legitimate and the adopted — and the kritrima son in Mithila
and the son of the appointed daughter among the Nambudris
of Malabar — ^the others are long since obsolete Jagan-

natha says that in Orissa it is still the practice with some
people to raise up issue on the wife of a brother, but his
own opinion is strongly expressed against th^ legality of such
a proceeding ( 2 ;“) . Mr. Colebrooke states that, in his time,
the practice of appointing brothers to raise up male issue
to deceased, impotent, or even absent brothers, still prevailed
in Orissa. Dr. Rajkuniar Sarvadhikari says in reference to
this statement: “fi^pm all the enquiries we have made on the
subject, it appears that the practice is highly reprobated among
the higher classes in Orissa, and if it exists among
the lower classes at all, it exists in such a form that it is of
no importance whatever from a juridical point of view.” lie
adds that, among some of the rich and noble classes in Orissa,
the practice of Niyoga has probably assumed the modernised
form of marriage with an elder brother’s widow (v^)»

§ 83. Among the Nambudris in Malabar, the son of
the appointed daughter is still recognised as heir to his
maternal grandfather, where the marriage of his daughter has
taken place according to the form known as Sarvasvadhanarn;
the formula used being, “I give unto thee this virgin, who has
no bi other, decked with jewels; the son who may be born of

(t;) Manu, IX, 141, 142, 159.

(t;^) Nagindas v. Bathoo Hurhissondas (1916), 4J I A., 50, 40
Bom., 270.

(t;2) The marriage of a widow with the brother of her deceased
husband was sanctioned by Manu in the single case of a girl who had
been left a virgin widow (Manu, IX, 69, 70). The practice still exists
in many parts of India among the Ideiyars, the Gaudas and the Savaras
of Southern India, among the Jat families of the Punjab, and among
some of the Rajput class of Central India. In the Punjab, such
marriages are considered of an inferior class and do not give the issue
full rights of inheritance.

(t;3) Sarvadhikari, 2nd edn., 415, 416. It is not really the modernised
form but the more ancient. Vedic Index, I, 477. Dr. Sarvadhikari
seems to think that the custom, if well established, would even now
legalise the Kshetraja; but surely such a custom would be bad, being
opposed to morality and public policy.

All but two
now obsolete.

NambudrL

marriage.

126

MARRIAGE AND SONSHIP.

[chap. IV,

Eight fonn'i
marriage.

her shall be m\ son” (v^). Such a marriage can take place
only when a Nambudri has no male issue. The result of
such an arrangement is that if a son is born, he inherits to,
and IS for all purposes the son of, his mother’s father. If
there is no male issue or on failure of such issue, the
property of the wife’s family does not belong to the husband
but leverts to the family of her father unless the

marriage has been accompanied by a formal appointment of
the son-in-law as heir of the Illom The Madras High

Couit has held that the practice of appointing a daughter is
obsolete elsewhere and the party relying upon it must piove
the existence of the custom (v”).

§ 8h From the above discussion, it is clear that, in
ancient Hindu law, sonship was founded upon marriage or,
where a siihstilule for the son was required, on adoption. A
discussion of the marriage law itself will show that, from the
Vedu times, marriage has throughout been a saci ament and
a permanent union (ic).

Eight forms of marriage are mentioned by Gautama^
Haiidhayana, Maim, Vishnu, Yajnavalkya and Narada and six
b\ Apastamba and Vasishtha ix) . The Asvalayana Grihya-
sutia which is earlier than the Dharmasastias also gives the
foimulae of eight forms (y) . The Aithasastra of Kautiha

Kiimaran v Narayan (1886) 9 Mad, 260, Vasudevan v.

Secretaf} of State (1888) 11 Mad, 157, Chemnautha v. Palakuzhu
(UH)2) 25 Mad, 662

(i/O 11 Mad, 157, 162; 25 Mad, 662, 664. .

Wjgram, 16

(r") Venkata Narasimha v Suraneni Venkata (1908) 31 Mad, 310r
in Thakiir Jeebnath Singh v Court oj Wards (1875) 2 f A, 163 (3
^ K P (^ , 409), the Judicial Committee intimated a doubt whether the
floii of the appointed daughter might not even now he lawfully inbtitutid
in the orlhode\ parts of India.

iw) “With the early Romans, as with the Hindus and the Greeks,
marriage was a leligious duty — a duty a man owed alike to his ancestors
and himself Btlieving that the happiness of the dead in another
world depended on their proper burial and on the periodical renewal
by their descendants of prayers and feasts and offerings for the repose
of their souls, it was incumbent upon him above all things to perpetuate
his race and his family cult In taking to himself a wife, he was about
to separate her, from her father’s house and make her a partner of his
family mysteries” Muirhead ‘Historical Introduction to the Private
Law of Rome’, 21, 24.

ix) Manu, HI, 27-34, Gant, IV, 615, Baudh I, 11, 20, Apas, II,
5, 11, 17-20, II, 5, 12, 1-4. Yas., I, 28-37, Vishnu, XXIV, 17-37; Yajn.,
I, 58-61, Nar, XII, 38-44

(y) AsvHayana, I, 6 and 7, Vol. XXX, SBE Introdn. 34.

PARAS. 84 & 85 ]. FORMS OF MARRIAGE.

127

also mentions eight forms (z).

Manu describes them as follows: —

The gift of a daughter, after decking her with costly gar-
ments and honouring her by presents of jewels, to a man
learned in the Veda and of good conduct, whom the father
himself invites is called the Brahma rite.

The gift of a daughter who has been decked with orna-
ments, to a priest who duly officiates at a sacrifice during the
course of its performance, they call the Daiva rite.

When the father gives away his daughter according to the
rule, after receiving from the bridegroom, ^or the fulfilment
of the sacred law, a cow and a bull or two pairs, that is
named the Arsha rite.

The gift of a daughter by her father after he has addiessed
the couple with the text, ‘May both of you perform together
your duties,’ and* has shown honour to the bridegroom is
called the Prajapatya rite.

When the bridegroom receives a maiden, after having
given as much wealth as he can afford, to the kinsmen and
to the bride herself, according to his own will, that is called
the Asura rite.

The voluntary union of a maiden and her lover, one must
know to be the Gandharva rite, which springs from desire
and has sexual intercourse for its purpose.

The forcible abduction of a maiden from her home, while
she cries out and weeps, after her kinsmen have been slam
or wounded and> their houses broken open, is called the
Rakshasa rite.

When a man by stealth seduces a girl who is sleeping,
intoxicated, or unconscious, that is the eighth, the most base
and sinful Paisacha rite (a).

§ 85. From these, Apastamba and Vasishtha omit the Their
Prajapatya and the Paisacha rites. According to Asvala^ana, distmctive
a wedding is called the Paisacha where a man carries her off
while her relatives sleep or pay no attention; where a man
marries her after gladdening her father by money, it is called

(z) Arthas., Ill, 2; Shamasastri, 186.

(a) Manu, III, 27-34. The words *Matta* and 'Pramatta* in verse 34
mean in the context ‘intoxicated or unconscious*. The commentators oi
Manu give one or other of these meanings. Sir William Jones and Or.
Jha translate it as ‘intoxicated or unconscious* which is preferable to
Dr. Buhler*s translation ‘intoxicated or disordered in intellect*.

128

MARRIAGE AND SONSHIP.

[chap. IV,

Prajapatya

Daiva

Arsha.

the Asura; where a man marries her after a mutual agreement
has been made between the lover and the damsel, it is called
the Gandharva (6). The Rakshasa marriage is defined more
simply by Gautama, Baudhayana and Yajnavalkya; “if the
bride is taken away by force or in war, that is a Rakshasa
wedding” (c). Baudhayana pronounces this rite to be lawful
for Kshatriyas (d) . Vasishtha names the Rakshasa and
Asura rites as the Kshatra and Manusha rites respectively (e) .
The Gandharva and the Rakshasa, whether separate or mixed,
are declared by Manu to be lawful for Kshatriyas {/) . Manu
altogether prohibits the Asura and the Paisacha for all castes
including the Sudra (g) and condemns the Paisacha as the
basest and most sinful of all (h ) . Narada denounces the
Asura, the Rakshasa and the Paisacha as unlawful (i) :
while curiously Baudhayana says that the Paisacha as well as
the Gandharva are lawful for Vaisyas and Sudras (/).

From the omission by Apastamba and Vasishtha of all
reference to the Paisacha as well as the Prajapatya marriages,
it may well be inferred that these two forms had become
obsolete long before their time. Dr. Jolly however conjec-
tures that they were introduced {k) subsequent to Apastamba
and Vasishtha but this either overlooks or does not give
suffi( lent weight to the fact that writers earlier than Apastamba
and Vasishtha mention them distinctly (/) . The Prajapatya
became obsolete very early; for the difference between it and
the Brahma form was only that, in the latter, the father
offered his daughter and, in the former, the bridegroom pro-
ffered his suit. The Daiva only differed from the Brahma in
that the gift was made to a priest officiating at a sacrifice
during its performance. In the Arsha form, the nominal
character of the sale was clear; for the father’s taking from

(b) Asavalayana, I, 6, 5-7, SBE, Vol. xxix, 166, 167.

(c) Gaut, IV, 12; Baudh , I, 11, 20, 8, Yajn., I, 61.

(d) Baudh I, 11, 20, 12.

(e) Vas, I, 34, 35.

(/) Manu, III, 26.

{g) Manu, III, 25, 34; IX, 98.

(A) Manu, HI, 34

U) Nar, XII, 43, 44.

(y) Baudh, I, II, 20, 13.

(k) Jolly, T L L , 74. Both the Prajapatya and the Paisacha lorms
must, from their very nature, have been more archaic rather than more
recent. If they could not be made intelligible by the earliest Smriti
writers, that argues in favour of their having become obsolete long
before their time.

(/) Abv^layana, Gautama and Baudhayana.

PARAS. 85 & 86.] ONLY THREE FORMS.

129

the bridegroom a cow and a bull or two pairs was only in
fulfilment of the sacred law, there being no intention to sell
the child; and the bull and the cow were received back with
the bride by the bridegroom (m.) . The Rakshasa form is
simply the marriage by capture. As Dr. Jolly says, the high
antiquity of marriage by capture becomes evident from its
wide prevalence among other Indo-Germanic peoples and it is
well known that it is a universal custom and is particularly
connected with exogamy, as is the case also in India. At the
present day only a few traces of this marriage by capture
seem to be left in India, principally among the rude hill
tribes; the sham abduction which owes its origin to the
marriage by capture is found more frequently as a marriage
ritual, e.g., among the Rajput tribes, that is to say, among
the descendants of the ancient Kshatriyas (n) . During the
Vedic times, marriages by capture may have occasionally
taken place as knightly feats, as when Vimada carried off
Purumitra’s daughter, against her father’s wish but very
probably with her own consent (o).

‘ § 86. The primitive methods of obtaining a wife were
evidently either by forcibly abducting her or stealing her
from parental control or by purchasing her from her
father or from those who had authority over her. The
Rakshasa, the Paisacha and the Asura referred only to those
modes Marriage as Medhatithi, the commentator of Manu,
says, “has been classified under eight heads on the basis of
different methods used for taking wives; and it does not
mean that there are eight kinds of marriage” (p ) . These
eight methods of obtaining a wife really resolve themselves
into three form&f of marriage, namely, the gift of the bride,
the sale of the bride and the agreement between the man and
the woman. In all cases alike, the gift, sale or agreement
had to be completed by marriage rites. The Brahma, Daiva,
Prajapatya, Arsha and Asura forms all agree in this, that
the dominion of the parents over the daughter was fully recog-
nised and the marriage was founded upon a formal transfer
of this dominion to the husband. In the Arsha and Asura
forms, the transfer of dominion took the form of sale, though.

(m) Apas., II, 6, 13, 12 (controverting the opinion of Vas., I, 36) ;
also the commentary on Baudh., I, 11, 20, 4.
in) Jolly, L & C, 109.

(o) Vedic Index, I, 483; compare the Pratignayaugandharayana
(Act IV, 1, 24) ascribed to Bhasa (c. 1st cent. B.C.).

ip) Medhatithi on Mann, III, 34; VIII, 366, Jha*s trans., Vol. II,
55-63. Vol. IV, 393.

10

Rakshasa.

Only three
kinds of
marriage.

130

MARRIAGE AND SONSHIP.

[chap. IV.

in the former, it had come to be merely nominal The transfer
of dominion was by way of gift of the daughter to the
husband in the Brahma, Daiva and Prajapatya forms. In
the Gandharva, Rakshasa and Paisacha forms, there was no
recognition or tiansfei of parental dominion in the first
instance but the inariiage was only the result of an agreement
either at the time of taking her or afterwards. In the
Rakshasa and Paisacha foims, the marriage resulted from
prior or subsequent agi cement, coupled with the peiforniance
of marriage rites. In the case of the Gandharva, the mairiage
was in all cases the result of prioi agreement, perfected by
marriage rites

S 87. The ancient Hindu law certainly did not lec ognise
lape and seduction as marriages No assumption could be
made that a man was liee to violate a maiden. Foi, abduction
and rape weie offences then as they aie now Yajnavalkya
says “He who defiles a maiden shall have hi^ hand cut off and
he shall lose his life if she be. of a higher class”. He who
kidnapped a maiden of the same class was heavily fined but
if of superior class, was sentenced to death (</) Vijnanes-
vara, commenting on Yajn II, 288 says that if the parent of
the girl desired he had to pay the sulka — a pair of kine and
that, if he did not desire, he had to pay the same, as a fine,
to the king But if he had approached an unwilling maiden,
he suffered coiporal punishment (r) The Rakshasa and
Paisacha and Paisacha marriages therefore did not legalise violence or
Rakshasa fraud; their very names condemned those methods of obtain-
ing a wife. But wheie, after forcible or secret abduction,
with or without her consent, a woman is subsequently married
with rites eithei with the consent of her pai^nts or with he^

iq) Yajn, Jl, 287, 288 “lie who violates an unwilling maiden
shall instantly suffer corporal punibhnient If any man, through

insolence, forcil^ly t ontaminates a maiden, two of his fingers shall be
instantly cut off and he shall pay a fine of six hundred panas ” Mann,
VIII, 364, 367, also 366 “When he has connection with a maiden
against her will he shall have two fingers cut off If the maiden belongs
to the highest caste, death and the confiscation of his entire property
shall be his punishment When however he has connection with a
willing maiden, he shall bestow ornaments on her, honour her and
lawfully espouse her “ Nar, XII, 71-72, Brih , XXIII, 3, 10-12 See
also Jha, HLS, 1, Ch XVIII. Vishnu, V, 40 43, 192

(/•) Sankha and Likbita say “By whatever limb, a man misbehaves
with a woman, that limb should be cut off or a fine of eight and
thousand should be imposed “ 1 Jha, H L S , I, 481, Apastamba cited

in HLS, I, 482) See also Arlhas , IV, 12, Shamasaslri, 279-280,
Vivada Chintamani, 205, 218 Kalyayana says, “When a mgin has
enjoyed a woman by force, he should suffer death ’ (cited in the
Vivada Ratik*kara, Jha, HLS, I, 482).

PARAS. 87 & 88.] THE GANDHARVA MARRIAGE.

131

consent, it would certainly be marriage, though disapproved
on account of the original violence or fraud ( 5 ). The true
meaning of the Rakshasa and Paisacha marriages appears from
the texts of Baudhayana and Vasishtha. Baudhayana
expresses it affirmatively: “If one has intercourse with a
maiden who is sleeping, intoxicated or out of her senses (with
fear or passion) and weds her afterwards^ that is the rite of
the Pisachas (Paisacha)” (i). Vasishtha negatives the possi-
bility of any legal nexus otherwise: “If a damsel has been
abducted by force and not been wedded with sacred texts,
she may lawfully be given to another man; she is even like
a maiden” (a).

»

§ 88. The circumstances under which a Gandharva
marriage is permitted or recognised are clear enough.
The Smritis empower a maiden who is not given in marriage
by her father within three years after she becomes marriage-
able, to choose for herself a bridegroom of equal caste (v) .
She could not however take with her any ornaments given to
her by her parents or brothers and the bridegroom was not
required to pay any nuptial fee to her father. This prosaic
Svayarnvara of the Smritis enabled a Gandharva marriage to
be contracted while the romantic svayamvata of the puranic
and poetic tradition was confined to the Kshatriyas (m;).

Both writers on Hindu law and courts have taken Manu’s
verses as complete definitions of the forms of marriage and
as no rites are mentioned by Manu in connection with the
Gandharva, Rakshasa and Paisacha forms, they have often
erroneously regarded them as merely euphemisms for con-
cubinage, rape and seduction. As Dr. Jolly points out, the
silence of the Smritis about the marriage ceremonies is easily
explained if we remember that the Dharmasastras are not
independent works but parts of a whole, the description of
sarnskaras or rites falling within the province of the Grihya
sutras (m;^). According to all the writers, the* nuptial rites

( 5 ) In the Paisacha and Rakshasa forms, the man either willingly
made or was compelled by the community or by the King to make an
‘honest woman’ of her. Sir G. Banerjee criticises MacNaghten’s view
that the Paisacha is an instance where fraud is legalised by Hindu
Law, M & S, 5th edn , 94.

(t) Baudh., I, 11, 20, 9.

(u) Vas., XVII, 73.

iv) Manu, IX, 90-93; Vas., XVII, 67-88. Both Gaut., XVIII, 20
and Vishnu, XXIV, 40, require her, it is said, to wait for three monthly
courses. Nanda Pandita, in his Vaijayanti rightly interprets it to mean
three years.

{w) Jolly, L & C, 109-111.

(u;i) Jolly, T.L.L., 73.

132

MARRIAGE AND SONSHIP.

[chap. IV,

are required in the Gandharva, Rakshasa and Paisacha forms
just as much in other forms. The common misconception
IS dispelled not only by the sutras of Baudhayana and Vasish-
tha already cited but also by the passages from several other
works to be presently referred to.

Approved and

unapproved

marriages

§ 89. Generally the Smritis regarded the Brahma, Daiva,
Arsha and Prajapatya forms as the approved or blameless
marriages and the other four Gandharva, Asura, Rakshasa and
Paisacha as the unapproved or blameworthy marriages (x ) .
Kautilya’s Arthasastra mentions the first four as Dharma-
Vivaha, resting upon the authority and approval of the father
The rest require to be sanctioned by both the parents for it is
they that accept the sulka (bride price) paid by the bride-
groom for their daughter \y) . This latter statement cannot
refer to the Gandharva where no sulka need be paid (z). The
principal diffeience between the approved and the unapproved
marriages is to be found in the matter of succession to a
woman’s stridhana; in the former case, the husband’s, and in
the latter, the parents’ family, is preferred. Evidently, the
reason was that, originally in the case of approved marriages,
she passed into her husband’s gotra and in unapproved
marriages, she did not.

The difference is explained by Madhava. “In the forms
of marriage beginning with Gandharva, as there is no gift of
the maiden, the gotra and pinda of the father do not
cease” (a) The Smriti Chandnka, Nilakantha in his Sams-
kara Mayukha and Kamalakara in his Nirnaya Sindhu take
the same view (6). Referring to a wife married in the
Asura and the Gandharva forms, the Mil^kshara also lays
down that the father’s gotra is retained throughout her life (c) .
Both usage and the inclusion in the Mitakshara of the wife as
a sagotrdsa pinda have given her the gotra of her husband

{x) Manu, III, 24, 39, 41, 42; Gaul, IV, 14, Baudh , I, xi, 20,
10-11; Apas., II, 5, 12, 3

iy) Arthasastra, III, 2, 10-12 (Jolly’s edn ) ; Shamasastri, 186.

(z) Manu, IX, 93.

(a) Parasaramadhaviya (Irans. in 1 M.L.J., 465 reprint). “And
so in the Markandeyapurana , ‘the funeral cake and water should be
offered as belonging to the husband’s gotra, in the case of maiden
married in the forms beginning with the Brahma, and as belonging to
the father’s gotra, in the case of woman married in the forms beginning
with the Gandharva by one acquainted with the ceremonial law’.”
Bhagwan v. Wamhai (1908) 32 Bom., 300, 312-314

(b) Smritichandrika, Samskarakanda, 186 (Mysore edn.) ; Samskara
Mayukha, 52 (Gharpure’s edn.) , Nirnayasindhu (Setlur’s trans.), 563.

(c) Mu. on Yajn., I, 254, Vidyarnava’s trans, 343-344.

PARAS. 89-91.]

APPROVED FORM PRESUMED.

133

in all forms of marriage. Courts have also held that a wife
passes into her husband’s family and gotra, without distin-
guishing between the forms of marriage (d).

§ 90. Of all these forms of marriage, with the exception
of the Brahma, Gandharva and Asura, the others have become
obsolete, long ago.

The essence of the Brahma form of marriage is that it
is a gift of the daughter in marriage; accordingly, it is said
that the distinctive mark of the Asura form is the payment
of money for the bride as the absence of that payment is
of the approved form (e). As originally the bridegroom
in the Brahma form was ‘a man learned m the Vedas’,
it was inadmissible for a Sudra. But it has long since
become lawful for all castes, for, when the form came to be
universally adopted by the Brahmins, it was very probably
followed by thd other classes as a mark of higher social
status. The Madras Sudder Court held, as long ago as 1859,
that, in the case of Sudras, the mere fact that the bride is given
without the bestowal of any gift bv the bridegroom constitutes
the marriage one of the Brahma form (/).

§ 91. The presumption of Hindu law is always in favour
of a marriage being in the Brahma or approved form as against
its being an Asura or unapproved form (g). In a case in
Bombay, where a man married a divorced woman belonging
to the Koli caste, the presumption was pushed to the extent
of holding that it could not be regarded as an unapproved
form of mariiage. It was rested on the ground that, as the
Asura form wa*s the only surviving unapproved form of a
valid marriage, every other marriage must be regarded as
not unapproved (h), A similar presumption must be applied
in connection with the remarriage of widows (i) and has

id) Lallubhai Bapubhai v. Cassibhai (1880 ) 7 I. A.. 212, 231;
5 Bom., 110, 118, Vasudevan v. The Secretary of State (1887) 11 Mad.
157, 161; Mokhoda Dassee v. Nundolall (1900 ) 27 Cal., 555, 562-563,
Kalgavada Tavanappa v. Sornappa (1909) 33 Bom., 669, 674-5.

(e) Authikesavalu v. Ramanuja (1909) 32 Mad., 512.

(/) Sivarama v. Bagavan, Madras Dec., 1859, 44.

(g) Authikesavalu v. Ramanuja (1909) 32 Mad., 512; Jagannath
Prasad v. Ranjit Singh (1898) 25 Cal., 354, 365; Gojabai v. Shrimant
Sahaji Rao (1893) 17 Bom., 114; ChuniUd v. Suraj Ram (1909) 33
Bom., 433, 437; Hira v. Hansji (1913) 37 Bom., 295., 300; Mt. Thakur
Deyhee v. Rai Baluk Ram (1866) 11 M.I.A., 139, 175, Sivanagalingam
V. Ambalavana (1938) M.W.N., 161.

(A) Hira v. Hansji (1913) 37 Bom., 295, 301.

(i) Moosa Haji Joonus v. Haji Abdul Rahim (1906^*30 Bom., 197.

Change of
Gotra.

All obsolete
except three.

Brahma.

Presumption
in favour of
approved
form.

134

x\URR[AGK AND SONSHIP.

[chap. IV,

Gandharva

Riles
necessary
for all
marriages.

been applied to the (*ustomary form of marriage called the
Karao marriage ( / ) .

§ 92. The Gandhaiva form of marriage has been the
subject of much misconception; for, without seeking the
assistance of established i ommentaries, an erroneous construc-
tion has been placed upon the text of Manu(A;). Manu’s
text has evidently been understood by some modern writers
and in some of the decisions of Couits to mean that it is
nothing but c oncuhinage ( / ) . Manu’s text merely refers to
the distinction that the Gandharva marriage rests upon
agreement and that it spiings from mutual love Just as
the marriage rite*;, aie not mentioned in connection with
the other foiins, no iiles aie mentioned here also, but
in all cases the mairiage rites are implied (/M Foi instance,
the gift of a maiden in the Brahma mariiage transfers only
the ownership over hei but the girl does not become wife
until the mairiage is dulv performed (m) So Aoo in the Asura
form, while the sale tiansfers the ownership, she becomes a
wife onlv cjii the perfoimanc'e of marriage rites The marriage
rites are identn al in all the forms of marriage, whether it
IS the Brahma. Gandhaiva or Asura The Grihya Sutra of
Asvalavana lefeis to the Gandharva wedding m these words.
“He niav mati) hei after mutual agreement has been
made” ( 71 ) Immediateiv aftei mentioning the eight forms,
Asvalavana states the marriage iites common to all the
forms (oj. The (Jrihya Paiisistha says. '‘In the Gandhaiva,
the Asuia and the Paisac ha and in the Rakshasa, the meeting
takes place first, and the Homa (sacrifice) is ordained
subsequentlv ” (p ) . The Sniiiti Chanclnka(^), in order to

(;) hishvn Dei \ Shut Dalian (1926) 18 All, 126
(A ) iMami, III, 32

(/) flhaoni \ Mahraj Singh (1881) 3 All, 738, 743 (whcie tlicre
was no (lis( ii'-sioR. and no reference to texts and commentaries), liiit
see Kishen Dei \ Sfuo Dalian (1926) 18 All, 126, 133 Kiiinaraswami
Sastri, J.’s diclum in !>ubramani(i \ Rathnavelu (1918) 41 Mad, 44, 65
that the foui iinappioved maiiiages the Asura and otheis, are nothing
but pure com uhinagc i" cUarly erroneous and opposed to the
authorities

(/i) Jolly, TLL, 73

{m) Medhatithj, commenting on Alarm, V, I'll (according to Dr
Jha, Mann, Vol III, Part I, 175, V 152, according to Dr Buhler).
The gloss of Kulhika on Manu, V, 152, is to the same I'fft'ct
(n) Asvalayana, 1, 6, 5, ^BE, Vol 29, 166
(c?) Asvalayana, I, 7, S B.E , Vol 29, 166

(p) Grihya Parisjshtha, cited in Parasara Madhaviyam [1 MLJ.
(Journal), 6631 (Reprint)

iq) Smritiiiiandrika (Mysore edn), Samskarakanda, 230

PARA. 92.]

GANDHARVA VAGID.

135

remove a possible doubt as to how, in the Asura and the
Candharva, in the absence of the Saptapadi and the rest, the
relation of husband and wife is created, states that even in
those two forms, the marriage rites are ordained after the
taking away of the bride — for, in the Asura form as mentioned
by Manu, the marriage is performed after the carrying awav
of the maiden (r). Madhava expresses the same opinion
very clearly relying upon Baudhayana, Vasishtha, Devala
and the Grihya Parisishtha (5). All the established com-
mentators recognise the requirements and validity of the
Candharva marriage. The Mitakshara makes the distinction
fairly clear by saying that the Candharva marriage
is based upon mutual consent (/). Mitra Misra, in his
Viramitrodayatika upon the Yajnavalkya Smriti, explaining
the texts of Yajnavalkya and Manu, leaves absolutely no room
for doubt. “Where the bride and the bridegroom mutually
bind themselves, thus, ‘You are my husband^ ‘You are my
wife’, and a marriage takes place independently of a gift to
be made by the father, etc., that marriage is the Candharva.
.... Accordingly where a maiden chooses the bridegroom
{svayamvai a) , it is also the Candharva form of marriage”.
He adds that in the Candharva also the marriage is performed
with Vedic ritual (u). The same view is expiessed in the
Madanaparijata of Visvesvarabhatta (1;). The commentators
of Manu, Medhatithi, Covindaraja and Saivajnanarayana take
the same view Nilakantha in his Samskara Mayukha {w)

(r) Manu, Dr. Jha brings out clearly the meaning of the

term ‘apradanam’ with the aid of Medhatithi’s text. “When one carries
away the maiden, aftei having given, of his own will, as much wealth
as he can, to the kinsmen as well as to the bride herself, this is called
the Asura form ” Vol. II, Part I, 57 Foi its view, the Smnti
Chandrika relies on the texts of Devala and the Grihya Parisishtha.

(s) Parasara Madhaviyam. “Theie need not be any doubt as to
the status of husband and a wife, being established in the forms of
marriage beginning with the Candharva for want of the ceremony of,
Agoing round the seven steps, etc.’ For though those ceremonies are
absent before taking the bride, they take place subsequently”, Trans
1 M L.J. (Journal), 663 — reprint.

(f) Mit. on Yajn., I, 61; Vidyarnava’s trans, 126*127.

(tt) Viramitrodayatika, 177 (Gharpure’s tians )

(t;) Madanaparijata, 157 (Calcutta edn.).

(i;i) Medhatithi on Manu, III, 31; VIII, 366, Balambhatta in his
commentary on the Mitakshara says that in the case of the Candharva
and other forms of marriage, in order to constitute the legal status of
husband and wife, there must be performed the ceremonies of Homa
and all the rest up to the Saptapadi (Vidyarnava*s trans. of Achara
Adhyaya, 128) ; so also Jagannatha, Digest, II, 614.
iw) Gharpure’s edn., 64.

136

MARRIAGE AND SONSHIP.

[chap. IV,

Lawful for
all castes

Not obsolete

and Kamalakara, in his Nirnayasindhu (:v) state that in the
Gandharva, the homam and the wedding rites take place
afterwards. In the Brahma form, the wedding takes place
first and the co-habitation later. In the Gandharva form,
where the union takes place before, the marriage is after-
wards. But the union need not take place in all cases before
marriage as m the case of the svayamvara where a maiden
chooses her own husband (y)

§ 93. Though the Gandharva form was more favoured
among the Kshatriyas in olden days, according to the text of
Manu, it was lawful for Brahmins as well as for Vaisyas and
Sudras ( 2 ). According to Baudhayana, the Gandharva form
IS recommended by some sages as lawful for all castes as it
IS based on mutual affection (a). Narada is clear; “The
Gandharva form is common to all castes” (b). According
to the Viramitrodayatika on the Yajnavalkya Smriti, the
Gandharva form is unopposed to law and is available for all
the castes (c). The Brahma and the Gandharva are there-
fore lawful for all castes.

If the Gandharva form of marriage meant, as has been
erroneously assumed, concubinage, it was never valid; the
statement that it has become obsolete can be correct only if
it refers to the view that concubinage at any time constituted
marriage under Hindu law. The Gandharva form of
marriage, meaning a mutual agreement coupled with the
performance of the prescribed or customary maniage rites is
certainly not obsolete. Brindavan v. Radharnoney {d) sup-
ports this view. In that case, dissenting frorti MacNaghten’s
view as to the Gandharva marriage, which was the foundation
of all subsequent misconception, the Madras High Court held
that, according to the texts, the religious element appears to
be indispensable to a valid Gandharva marriage According

(x) This IS quoted in Vyavastha Chandnka, Vol. II, 444.

(y) Manu, IX, 93.

iz) Manu, III, 23

ia) Baudh , I, xi, 20, 13-16.

(6) Narada, XII, 44.

(c) Gharpure’s irans., 179.

id) (1899) 12 Mad., 72, Kishen Dei v. Sheo Palton (1926) 48 All.,
126, 133* 1, Strange, H. L, 42, see also Gajapathi Radika v. Sri
Gajapathi (1870) 13, M.I A , 506. The decision in 12 Mad, 72, has
been misunderstood in Maharajah of Kolhapur v Sundaram Iyer (1925)
48 Mad., 1, 39^ and the expression of opinion is founded upon the old
misconception See Padayachi v. A, Ammal, A.I.R , 1938, Rang. 59.

PARAS. 93 & 94.] CANDHARVA APPROVED FORM.

137

to Jagannatha (e) and Sir Gooroodass Banerjee (/), the
Gandharva form is not obsolete; it sometimes takes place (g).

Owing to the mistaken view of the Gandharva marriage,
Courts have been forced to arrive at startling conclusions
by doing violence to the texts of Manu describing the Brahma
marriage. While the other requirements of the Brahma
form, that the girl should be decked with costly ornaments
etc., and that the bridegroom should be a man learned in the
Vedas and of good conduct are not legal precepts, the only
legal requirement is that there should be a gift of a maiden
{kanyayah danam) . Where a divorced woman or a widow,
not a virgin, is married, it cannot, in lawi be a marriage
in the Brahma form, for in those cases, there is neither a
maiden nor a gift of her. Even if the widow is a minor,
where her first marriage was consummated, her own consent
would be necessary and sufficient (h). In the case of a
divorced woman Or a widow, there is a contract of marriage
between her and the man whom she marries, followed of
course by the usual rites. This is nothing but a Gandharva
marriage. Accordingly Jagannatha says: ‘The second marriage
of a woman who had already been espoused by another man
falls under the description of a Gandharva marriage’ (i) .

So also m the case of any Hindu girl who has attained
majority (i) under Hindu law, it will be a Gandharva
marriage.

§ 94. That the Gandharva form is an approved form,
just like the Brahma form, for the purpose of determining
the order of succession to Stridhana of a woman is clearly
staled by Manu and Narada (/). While the rule in Manu is
clear, the text in the Yajnavalkya Smriti is capable of different
interpretations (A:) . “The property of a childless woman
married in the Brahma or even (api) in any of the four goes
to her husband. In the other forms, it goes to her parents”.
The Smriti Chandrika says of this text: “By the use of the
particle "apt ‘even’ in the above text, the marriage of the

(e) Digest, II, 614.

(/) Banerjee, M & S, 5th edn., 93.

ig) In Visvanath Swamy Natcker v. Kama Ammal (1912) 24
M.L.J., 271, 282, no marriage was made out The decision simply
states that the Gandharva form had become obsolete in the Kamhala
caste and that perhaps amongst the Kshatriyas, the Gandharva form of
marriage has even within recent times, been recognised as prevalent in
some parts of India.

{h) Hindu Widows’ Remarriage Act, Sec. 7.

U) Digest, II, 614; c./. Bamdeb v. Braja 17 Pat., 134,

</) Manu, IX, 196, 197; Narada, XII, 44.

(k) Yajn., II, 145.

Gandharva,
an approved*
marriage.

138

MARRIAGE AND SONSHIP.

[chap. IV,

Asura

marriage

form Gandhdiva is also included” and thus reconciles it with
the rule in Manu (/). The Parasara Madhaviyam, the
Sarasvati Vilasa, the Vyavahara Mayukha, the Viramitrodaya,
the Vivada Ratnakara and the Vivada Chmtamani all take the
same view irn) . The Dayabhaga of Jimutavahana cites the
text of Ydjna\alkya and interprets it so as to include the
Gandharva in the approved forms (n) The Mitakshara,
however, includes the Gandharva in the unapproved forms but
does not refer to Manu or seek to reconcile it. This is a
case where the texts of Manu and Narada are clear and un-
ambiguous and the text of Yajnavalkya is capable of at least
two inteip rotations. As has happened more than once, the
Mitakshara cannot prevail against such of the hmiiti texts
as are unequivocal, especially where all the leading comment-
aries of all the schools are agreed amongst themselves (wM.

§ 95 Theie does not appear therefore, to be any neces-
sity to classify all marriages, whether they*'are in accordance
with Smiitis oi with modem notions or with family, local or
caste customs, into the Brahma or Asura forms. Where there
IS no expiess piovision of Hindu law, eithei on piinciples ot
justice, equitv and good conscience, or b\ the Hindu rule of
interpretation (ailed analogy, marriages, when they are not
strictly Brahma, Gandhaiva or Asm a, can now be legaided as
analogus to the Brahma. Gandharva oi the Asuia. as the case
may be

§ 96 In the Asuia form of marriage, both in form and
substance there is a sale b> the father of his daughter in
marriage as distinguished from a gift in the Brahma or an
agreement in the Gandharva West, J. c(tnsideicd that the
very name of the Asura indicated it as one derived from the
aboriginal inhabitants of this country or those occ upying
it before the Aryan invasion and that that was the reason why
it was loathed by the sages of the strict Brahmanical
school This appears to be ver^ doubtful The

(/) Smiiti Chandrikd, IX, in, 27 ( Knshnaswdmi Iyer’s tians, 132)
(m) Biiineir-. Daydvibhaga, 44, 45, Foiilkes, Sarasvati Vilasa, para
319, page 64, \ Mayukha, IV, x, 29, Viramitrodaya, Setlur 451, see
also Apararka tians m 21 MLJ (Journal) at page 431, Vivada
Ratnakara, 39 \i\ada (diintamani, 269
in) Dayabhaga IV, Set in

(riM Bhugwandeen Doobey v Myna Baee (1867) 11 MIA, 487,
Sn Baliisu’s case (1899) 26 I.A , 113, 22 Mad, 398, Sheo Shanker
Lai V Debi Snhai (1903) 30 I A , 202, 206, 25 All., 468, Debt MangaL
Prasad v Mahadeo Prasad (1912) 39 I A , 121, 34 All, 234

(o) Viji^angam \ Lahshmanan (1871) 8 B H C.O C J , 244, 254,
255.

PARA. 96 .]

ASURA MARRIAGE.

199

marriage by purchase appears to have been an institution
probably coeval with marriage by capture. It was certainly
not unknown among the Vedic Aryans (/>). Gradually, it
became discredited and the name Asura was attached to it,
till finally Manu prohibited it for all castes. The Arsha
form which is one of the approved forms, appears to be only
a survival of the Asura, the substantial price paid for the
bride having dwindled down to a gift of slight or nominal
value. The Vasishtha Dharmasutra states: “the purchase of
the wife is mentioned in the Veda. Therefore one hundred
cows, besides a chariot, should be given to the father of the
bride” {q) . Afterwards a practice of returning them to the
bridegroom grew up and it became merely symbolical.
Though the Arsha had probably taken the place of the Asura
so far ds the Brahmins were concerned, the Asura
appears to have been lawful for an Aryan Vaisya and Sudra
before it was comp^letely forbidden (r). It is stated generallv
that the Biahma is the only form in use at present and pro-
bably this may be so among the higher classes to whom the
assertion is limited by Mr. Steele ( 5 ). But there is no doubt
that the Asura is still practised; and in Southern India, among
the Sudras it is a very common, if not the prevailing, form (t).
In a case in Western India, the Shastries stated that, although
Asura marriages were forbidden, it had nevertheless been
the custom for Brahmins and others to celebrate such marri-
ages, and that no one had ever been expelled from caste for
such an act (u) .

(p) Jolly, L & (.; 11213; Vedic Index, I, 482, 483.

Vas., I, 36, Vasishtha refers to the passage of the Chathur
masya ‘*slie who has liecn bought by her husband,” I, 37 ; also Kane, 5

(r) Manu, III, 25

( 5 ) Gibelin, I, 63; Colebrooke, Essays, 142 (ed. of ,1858) , Steele,
159. Mandhk, 301.

(/) Authikemvalu v. Ramanuja (1909) 32 Mad., 512. Digest, 11,
614, 1 Stra. H.L , 43, Mayr., 155; M. Sorg states that among the
Tamil population the Asura form of mairiage is universal, and that
the Brahma form, which is known as Cannigadanam, or gift of a virgin,
18 not thought reputable, and that the son-in-law so married is consi-
dered to become adopted into the family of his father-in-law and loses
his right of succession in his natural family (Sorg., H.L, 30-33)

iu) Keshow Hao v. Naro 3 Bor., 198 (215, 221), and see Nundlaf
V. Tapeedas 1 Bor., 18 (16, 20) , for presumptions as to form of
marriages, Jaganath v. Narayan (1910) 34 Bom, 553, Chunilar
Siirajram (1909) 33 Bom., 433. In Assam, as a rule, women are looked
on as a species of property to be bought with a price, or by service
in the father’s house. The Gharos and Khasis alone do j^t purchase
their wives (Census report of 1891).

140

MARRIAGE AND SONSHIP.

[chap. IV,

The ceremonies necessary to constitute a valid marriage
are the same in the Asura as in the Brahma form, the former
having no distinctive ceremonies (v ) .

Bnde price § 97, Xhe texts speak of the bridegroom giving as much

as he can afford to the father of the bride {w) or ‘gladdening
her father by money’. Manu says, that “no father who knows
the law must take even the smallest gratuity for his daughter;
foi a man who, through avarice, takes a gratuity is a seller of
his offspring” and the acceptance of the fee, be it small or
great, is a sale of the daughter (.x) . According to Manu
III, 51, gifts of money or jewels to bndes or for their benefit
do not make the' transaction a sale It has been held that
gifts to a bride do not make the marriage an Asura (y) .

In Hira v Hansji ( 2 ) it was held that money paid to the
parents of the bride to be paid to her third husband to procure
her divorce was not bride price and the marriage was not in
the Asura but in the Brahma form. The decision however
appears to be open to criticism. The woman was not an un-
married woman; she had been thrice mariicd, and it could not
by any stretch of language be called the gift of a maiden in
order to constitute a Brahma marriage. It does not appear
that she was, at the time of her fourth marriage, a minor
whose prior marriages had not been consummated There
was no need for her parents’ consent under section 7 of the
Hindu Widows’ Remarriage Act.

Where the paternal or maternal relation*^ of a girl give
her in marriage and leceive a money consideration for it, it
is a sale of the girl. “The taint of the A^sura form lies in
the gratuity being paid to the giver of the bride for his benefit,
not in anything paid to her; and it is the taint which
determines the form” (a).

(i;) Banerjee M & S., 5th edn , 102, Aiithikcsavalu v Ramanuja
(1909) 32 Mad , 512, 519, 520.

{w) The Arthasastra also says ‘plenty of wealth’ III, 27 (Jolly’s
ed.) ; Shamasastn, 186, so too Manu, III, 31, Asvalayana, I, 6, 6,
who says ‘after gladdening the father’; Vidyarnava’s trans , 126, ‘the
asura by largely giving’, Balambhatti’s gloss ‘the giving of a large
quantity’. Vidyarnava’s trans , 127.

ix) Manu, III, 51; see also IX, 98, 100

(y) In the goods of Nathibai (1878) 2 Bom., 9, 15 (palu to
bride), Authikesavalu \. Ramanuja, (1909 ) 32 Mad, 512 (presents to
mother as compliment) , Kailasanatha v. Vadivanm (1935) 58 Mad.,
488 (parisam jewel for adorning the bride).

(z) (19^5) 37 Bom, 295; 17 IC., 941.

(fl) Chunilal v Suraj Ram (1909) 33 Bom, 433, 442.

PARA. 98.]

ASURA MARRIAGE.

141

S 98. Where the bridegroom or his party gives a sum of Expenses
money to the father of the girl towards the expenses of the
marriage, it has been held that it is equivalent to bride price
and that the marriage should be regarded as an Asura
marriage (6). It is put on the ground that as the father
ordinarily defrays the expenses of the marriage, he is
benefited to the extent to which the expenses are borne by
the bridegroom. Further, it is immaterial even if there
is a usage for the bridegroom to contribute to the expenses.

This view appears to go beyond the texts which determine
either the form or substance of the Asura marriage. The
money given for marriage expenses is not given either as price
or as consideration to the father for giving the girl in
marriage which is the only question to be considered. As
the marriage is for the benefit of both the bride and the
bridegroom, the money which is given for the expenses of
marriage is for the benefit either of the girl or of both.

The money giveA cannot be said to be appropriated by the
father for his own benefit. The text of Manu (c) would
seem to show that in such a case, there is no sale. It is
none the less a gift of his daughter in marriage for it is only
when a father makes a profit out of the fulfilment of the duty
imposed upon him by Hindu law of finding a suitable husband
for his daughter and stipulates for a price that it is an Asura
marriage (d) . It is a direct gain that is contemplated, not
some incidental or collateral benefit, such as the avoidance
of some detriment or expenditure. In many cases, the
marriage of a daughter may be delayed or may not be per-
formed because the father is unable to find the whole amount
necessary for the expenses or it may be desired to perform
it on a grander scale by the receipt of a contribution from
the bridegroom’s party. Or the marriage may be celebrated
in the bridegroom’s house and at his expense. In such cases,
one cannot presume as a matter of law that there is an
intention to sell in consideration of the sum oJF money given
for the expenses of the marriage. It is purely a question of
fact and the inference would ordinarily be it is not intended
to be a price (d^).

(6) Muthu V. Chidambara (1893) 3 261; Reverend Gabriel

V. Valhammai (1919) 10 M L.W., 491; (1920) M.W.N., 158;

Rathnathanni v. Somasundara (1921) 41 M.L.J., 76; Samuasari v.
Anachiammal (1925) 49 M.L.J., 554; Kailasanatha v. Vadivanm (1935)

58 Mad., 488.

(c) Manu, III, 54.

(d) See the opinion of Wallis and Munro, JJ., in their order of
reference to the Full Bench in V enkatakrishnayya v. Lakshminarayana
(1909) 32 Mad., 185, 186-187.

(d^) Sivanagalingam Pillai v. Ambalavana Pillai, 19Ji, M.W.N. 161.

142

Payment to
bride’s father.

Is Abura
marriage
valid ’

MARRIAGE AND SONSHIP. [CHAP. IV,

§ 99. Agreements to pay money to a father m considera-
tion of his giving his daughter in marriage are immoral and
opposed to public policy, although a marriage when perform-
ed in the Asura form is valid (e). Such agreements cannot
be enforced where the money has not been paid nor can it be
recovered back where it has been paid. Where the marriage
has not taken place, the money paid under such an illegal
agreement can be recovered back (/). Where under the
form of an Asura marriage the parents contracted for main-
tenance to be paid to themselves in consideration of giving
their daughter to an ineligible suitor, the Allahabad High
Court held that the agreement for maintenance was contrary
to public policy* and could not be enforced It was not
( ontended, however, that the marriage itself was invalid (g) .

Where consideration has been paid to the father or
guardian of a girl for giving her in marriage, Courts have
held it to be not merely a valid marriage ljut a valid Asura
marriage The sale of one’s daughter is as much immoral
and opposed to public policy as the agreement for the sale
of one’s daughter in marriage, whether the question is
approached from the standpoint of Hindu law or on grounds
of justice, equity and good conscience or with reference to
s. 23 of the Indian Contract Act. The Smritis have clearly
prohibited and declared that such marriages are sales of one’s
offspring (/i ) . Such contracts with the father are also
opposed to the Hindu conceptions of morality (i). Asura
mairiages have been upheld, not as a result of any family or
local custom but las recognised by Hindu law\ The latter
however forbids them and an) custom of that description
would, on the plainest grounds, be immoral and opposed to
public policy and to statute. If the agreement for sale is
invalid in law, the completed sale itself cannot be valid. To
give the illegal bargain just so much validit) as is necessary
to convert it into a valid Asura marriage, does not appear
to proceed Upon any sound principle. For an Asura

(e) Venkataknshnayya v Lakshminarayana (1909) 32 M., 185,

FB, overruling 13 Mad, 83 (S. 23, Ind. Con Act), Dholidas v.
Fidchand (1898) 22 Bom., 658, Gulabchand v Fulbai (1909) 33 Bom,
411, Devarayan Chetti v Mutturaman (1914) 37 Mad, 393, Subbaraju
V. Narayanarajii (1926) 51 M.L J , 366, 372

(/) Gulabchand v Fulbai (1909) 33 Bom, 411, Srinivasa Iyer v.
Sesha Iyer (1918) 41 M., 197.

(g) Baldeosahai v Jumna Kunwar (1901) 23 All , 495.

(A) Manu, III, 51, 52, 54, IX, 98, 100, Apas., II, 6, 13.

(i) See the opinion of the referring judges, Wallis and Miinro, JJ.,
in Venkataknshnayya v. Lakshminarayana (1909) 32 Mad., 185, 187.

PARAS. 99 & 100 .] A NECESSARY SAMSKARA.

143

marriage is only a marriage by sale in form and iti substance
and it can be valid as an Asura marriage, that is, as a
marriage by sale only if the sale were valid. But as the sale is
invalid, it cannot be a valid Asura marriage which is a contra-
diction in terms. But the marriage itself is perfectly valid,
when once the marriage rites are completed, though the sale
of the daughter is invalid. On principle, the payment
of money as consideration for giving the girl in marriage
does not affect its validity. The logical conclusion therefore
appears to be that while a marriage which purports to be an
Asura marriage is a valid marriage, it cannot be valid as a
marriage by sale, that is, as an Asura marriage. It can only
be treated as the gift of a daughter in marriage m the Brahma
form; for the father had both the intention and authority to
give her in marriage and gives her accordingly, and by the
rites, the relation of husband and wife is created and there
is no legal defect in the marriage. The breach of duty on
the part of the father or guardian can affect the giver only (/)
but neither the taker nor the girl given. Neither the payment
nor receipt of money can, as against her, operate a sale of
her; for it would be a nullity.

This view receives support from the analogous case where
the natural father of a boy receives consideration for giving
him in adoption. The payment does not affect the validity of
the adoption. As Subramania Aiyar, O.C.J., said, “to lay
down that the adopted son’s status itself would be affected
thereby, would be to confound two transactions which, in the
eye of law, are independent of each other, since the transaction
of the gift and acceptance which affect the status of the son is
clearly separable from the agreement or payment which the
law prohibits” (A;).

§ 100. Marriage is one of the necessary samskaras or
religious rites for all Hindus, whatever the caste, who do not
desire to adopt the life of a perpetual Brahmachari or of a
Sanyasi. Of couise there has never been any, doubt as to
its being a necessary samskara for a Hindu woman of any
caste (Z). While marriage is according to Hindu law a

(;) Compare Mit , I, XI, 10.

ik) Murugappa Chetti v. Nagappa (1906) 29 Mad.. 161, 164;
Kothandaramareddi v. Thesureddiar (1914) 27 M.L.J., 416, Subbaraju
V NaTayanaraju (1926) 51 M.LJ, 366.

(Z) Gopalaknshnan v. V enkatanarasa (1914) 37 Mad., 273 F.B ,
approving Kameswara Sastri v. Veeracharlu (1911) 34 Mad., 422 (where
there is a full discussion of the subject by Krishnaswami Aiyar, J.)
overruling Govindarazalu v. Devarabhotla (1904) 27 Mad., 206,

Srinivasa Iyengar v. Thiruvengadathiengar (1915) 38 Mad, 556,

Sundrabai v. Shivnarain (1908) 32 Bom., 81; Debilal Sah v. Nand
Kishore Gir (1922) 1 Pat., 266.

Marriage a

necessary

samskara.

144

MARRIAGE AND SONSHIP.

[chap. IV,

sacrament, it is also a civil contract, which takes the form of
a gift in the Brahma, a sale in the Asura, and an agreement
in the Gandharva (m) .

Betrothal

Not

specifically

enforceable.

Damages for
breach.

Marriage

brocage.

§ 101. Marriage therefore is not to be confounded with
betrothal. The one is a completed transaction; the other is
only a contract. Manu says, ‘‘Neither ancients nor moderns
who were good men have ever given a damsel in marriage
after she has been promised to another man” (n) . But
Narada and Yajnavalkya both admit the right of the father
to annul a betrothal to one suitor, if a better suitor presents
himself : and either party to the contract is allowed to
withdraw from it, where certain specified defects are dis-
covered (o). Narada states that a man, who withdraws from
his contract without proper cause, may be compelled to marry
the girl even against his will (p). But it is now settled by
decisions that a contract to marry will not be specifically
enforced (p^) . ^

Where the parties to a contract to marry are sui juris, an
action for damages for breach of contract by the man or the
woman will of course lie. Where the marriage contract is
entered into on behalf of minors. Courts have generally
awarded damages for breach of contract (^). It is well
settled that a marriage brocage contract or an agreement to
lemunerate or reward a third person m consideration of
negotiating a marriage is contrary to public policy and cannot
be enforced (r). An agreement to pay a sum of money to

im) Muthuswami Mudaliar v Mabilamani (1910) 33 Mad., 342 aj
355

(n) Manu, IX, 99.

io) Narada, XII, 30-38, Yajn , I, 65, 66, Vas , cited Dig, II,
174-175, Katyayana, cited Dig, II, 177, 178
(p) Narada, XII, 35.

(pi) Umed V Nagindas (1870) 7 Bom., H C.O C., 122, Nowbut v.
Mt. Lad Kooer 5 N W.P , 102, Re Gunpat Narain Singh (1876) 1 Cal ,
74, Karibassaka v. Karibassana 3 Mysore, 153.

iq) Umed v Nagindas (1870) 7 BHCOCJ, 122 (the agreement
being for payment of consideration was invalid as contrary to public
policy). Re Ganpat Narain Singh (1876) 1 Cal, 74, Mulji Thachersey
V. Gomati (1887) 11 Bom., 412, Purushotamdas Tnbhavandas v. Puru-
shothamdas (1897) 21 Bom., 23, Kandaswami v. Kanniah (1924) 46
MLJ., 366, Balubai Hiralal v. Nanabhai (1920) 44 Bom, 446 (where
damages were not awarded because pending suit, both the plaintiffs
died). The plaintiff bridegroom was himself party to the contract
both in 7 B H.C O C J , 122 and in 21 Bom., 23; Atma Ram v. Danku'
mal (1930) 11 Lah., 598 (antenatal betrothal of children invalid).

(r) Dulari v. Vallabadas Pragchi (1889) 13 Bom., 126,

V aithianatham v. Gangaraju (1894) 17 Mad., 9, Dholidas Ishwar v.
iFulchand (1898) 22 Bom, 658; Gulabchand v. Fulchand (1909) 33
Bom., M].\\ffermann v. Charlesworth (1905) 2 K.B., 123 C.A.

PARA. 101.]

BETROTHAL BY PARENTS.

145

a father in consideration of giving his daughter in marriage
is equally opposed to public policy and invalid (5). Money
paid to a father or brother under such an agreement cannot,
however, be recovered when once the marriage takes place (i) ^
hut if the marriage is not performed, it can be recovered (u).

Where there is a breach of contract or withdrawal, the Recovery of
Mitakshara says that, whatever is expended on account of the expense*,
•espousals by the intended bridegroom or by his father or his
j^uardian must be repaid in full with interest by the affiancer
to the bridegroom (v) . There was no doubt that such a
betrothal was treated as a binding promise by Yajnavalkya
and by the Mitakshara (w) . But the father was not bound
.to perform the agreement if there was just cause or if a
preferable suitor was available. Accordingly it was held in Agreement
a Bombay case that where a more eligible suitor was available, revocable,
there was no cause of action either for breach or procuration
of the breach by a third party {x) , In general, no contract
by which third parties, whether parents or guardians or

(s) Dholidas hhwar v. Fulchand (1898) 22 Bom., 658, Baldeo
Sahai V. Jamna K an war (1901) 23 All, 495, V enkatakrishnayya v.
Lakshminarayana (1909) 32 Mad, 185; Srinivasa Aiyar v. Sesha Aiyer
(1918) 41 Mad, 197 (brother) , Baldeo Das v. Mohamaya Prasad (1911)
15 C.W.N, 447 (dissenting on the point from 1 C L.J., 261); see also
Prart Mohandas v. Han Mohan Das (1925) 52 Cal., 425; Atma Ram v.
Rankmnal (1930) 11 Lah , 598, 610, Ram Suniram Prasad v Gobindas
(1926) 5 Pat, 646, 673, 704, the dictum of Bucknill, J , in 5 Pat,,
646 at 704 that an agreement to pay money to parents or guardians of
a hiide or bridegroom in consideration of their consenting to the
betrothal is not necessarily opposed to morality or public policy, is a
distinction without a diHerence.

(/^) Venkataknshjiayya v Lakshminarayana (1909) 32 Mad. 185
F.B., Dholidas Ishwar\\. Fulchand (1898) 22 Bom., 658, 665

ill) Dholidas Ishwar v. Fulchand (1898) 22 Bom., 658; Ramchand
Sen V. Aiidaito Sen (1884) 10 Cal., 1054, see the opinion of the referring
judges in V enkatakrishnayya v. Lakshminarayana (1909) 32 Mad., 185,
187; Anandiram Mandal v. Goza Kachori (1918) 27 CLJ, 459:
Srinivasa Iyer v. Sesha Iyer (1918) 41 Mad., 197. of course, antenuptial
contracts by a father to settle property on his daugtiteV aie periectly
valid. Pranmohandas v. Harimohan (1925) 52 Cal, 425.

(v) Mit., II, XI, 28; Balubhai Hiralal v. Nanabhai (1920) 44 Bom,
446 (return of jewels presented) ; Mulji Thackersey v. Gomti (1887)
11 B, 412 (expenses and jewels); limed v. Nagindas (1870) 7 Bom.,
H.CCl.CJ, 122, Rambhat v Timmayya (1892) 16 Bom., 673 (return
4)f jewels presented).

(u;) Yajn., I, 65 Mit., II, XI, 26-27; Narada, XII, 30-32.

{x) Per Beaman, J., in Khimji Fassonji v. Narsi Dhanji (1915)
39 Bom., 682, 714 and Jekisondas Harkisondas v. Ranchoddas (1917)
41 Bom., 137, 141, Balubhai Hiralal v. Nanabhai (1920) 44 Bom., 446
(for good cause, it may be withdrawn) ; Kandaswami Naidu v. Kanniah
(1924) 46 M.L.J., 366 (where it is assumed that, even if under Hindu
law there was just cause for revocation, one is liable according to th#
Mitakshara in damages. This is a misconception).

146

Whether

damages

recoverable.

Guardianship
in marriage.

MARRIAGE AND SONSHIP. [CHAP. IV^

strangers, have a pecuniary interest in bringing about a
marriage will be enforced (y). In Devarayan Chetty v.
Muttuiaman Chetty (z), it was held that an agreement between
A and B that B’s daughter shall marry A’s son and that if
she fails to do so, B shall pay a sum of money to A, is
trafficking in marriage and contrary to public policy. On
this view, it would follow that even in the absence of a
stipulation by way of penalty or liquidated damages, the
contract of betrothal by parents on behalf of minor children
would be unenforceable, as. m the case of a breach of
contract, they have to pay damages and as, therefore, they
have a pecuniary interest in bringing about the marriage (a)*
If the Hindu la\y on the matter were to be followed, the
contiact of betrothal would be binding subject to just cause
for revocation: but as the Hindu law of contracts is, under
the Civil Courts Acts, no longer m force, a contract of
betrothal can only be governed by the general law. The rule
of Hindu law regarding iccovery of money oi, jewels presented
before mairiage or of expenses incurred, apart from any
question of the parent’s betrothal being a valid contract, is
certainly enfoiceable as a rule of justice, equity and good
conscience (6). But, to award damages for bieach of con-
tract, except where the parties intending to marry one another
are themselves parties to the contract and are competent to
contract, appears open to the objection, that there can be no
enforceable contract to marry on behalf of minor children.
As the betrothal is revocable where a better match is available,
as the interests of the minor children are the paramount
consideration and as the old rule as to detention of an
affianced daughtci, being a punishable oftence, is certainly
not a rule of law now, the betrothal by parents cannot be held
to be binding in any case (6^).

§ 102. As regards the persons who are authorised to give
a girl m marriage, Narada says: ‘"A father shall give his
daughter in marriage himself, or a brother with the father’s
consent, or a grandfather, maternal uncle, kinsmen, or rela-

(y) PitainbiT Ratanbi v Jagjivan Hansraj (1889) 13 Bom., 131;
Devarayan Chetty v Mutturaman Chetty (1914) 37 M, 393

(z) (1914) 37 Mad, 393.

{a) In 7 B H.C (OCJ.), 122, the agreement was clearly illegal
as there was consideration. In 21 Bom , 23, the question was not
raised and it was doubted in 37 Mad., 393.

(6) Mit., II, XI, 28-30.

(61) But see Venkata Narasimha v. Govinda Krishna (1937>
M.W.N., 1274.

PARA. 102.]

POWER TO GIVE AWAY BRIDE.

147

lives. In default of all these, the mother, if she is qualified;
if she is not, the remoter relations should give a girl in
marriage. If there be none of these, the girl shall apply to
the king, and having obtained his permission to make her
own choice, choose a husband for herself” (c). According
to Yajnavalkya, the order of guardianship for giving the girl in
marriage is father, paternal grandfather, brother, kinsmen
(sakulya) and mother provided the giver is free from defects
like madness (d) . This is the rule for the Mitakshara school.
According to the Bengal school, the father, paternal grand-
father, brother, sakulya, maternal grandfather, maternal uncle
and mother, if of sound mind, are entitled in succession to
give the girl in marriage (e).

The order of guardianship laid down in the texts for
other purposes is different (e^), and the mother ranks
next to the father. This divergence has been explained
by holding thats the order of guardianship laid down
for giving the girl in marriage does not refer to the
legal right of disposal, but to the ceremonial competence
of those who are to dispose of her and are directory and
not obligatory. The right will ordinarily be regarded as
an incident of the general power of guardianship, unless
it be expressly vested by law m some one other than the
natural guardian. In accordance with this view, the
Madras High Court has held that where the mother was
the proper peisonal guaidian of her minor daughter, she
was entitled to select a bridegroom for her and give her
in marriage, even though the father of the deceased husband
and other male relatives had not improperly or wrongly
refused to perfornf the marriage, and to recover the reasonable
expenses ol the marriage from the joint family property (/).
Where a father had abandoned his wife and daughter, the
mother would be capable of giving away her daughter (g).

(c) Narada, XII, §§ 20-22; Vishnu, XXIV, 38, 39» Smritichandrika,
Samskarakanda, 223 (Mysore edn.) ; Samskara Mayukha, 66 (Ghar-
pure’ft edn.) ; see the interpretation of this text in Bai Ramkore v.
Jamnadas (1913) 37 Bom., 18, by Chandavarkar, J.

id) Yajn., I, 63.

(e) Raghunandana, Udhvahatatva, II, 70; Banerjee, M & S, 5th
edn., 49.

(el) See Ch. VI.

(/) Ranganaiki v. Ramanuja (1912) 35 Mad., 728. See also Bai
Ramkore v. Jamnadas (1913) 37 Bom., 18; Mt. Jiwani v. Mala Ram
(1922) 3 Lah., 29; In the matter of Manibai (1914) 15 M.L.T., 146.
Mt, Indi V. Ghania (1920) 1 Lah., 146.

(g) Base Rulyat v. Jeychund, Bellasis, 43; Khushalchund v. Bai
Mani (1887) 11 Bom., 247; Ghazi v. Sukru (1897) 19 Ali!, 515.

148

MARRIAGE AND SONSHIP.

[chap. IV,

Interference
of Court.

But of course, in no other circumstances would a marriage
contract entered into during the father’s lifetime be binding
without his consent (h). And the maternal grandfather has
a right of disposal superior to that of the stepmother (i).
Even before this decision the High Court of Madras refused
to allow a divided uncle to dispose of his niece in marriage
without consulting her mother. Where the mother was at
once the guardian of the girl, and the legal possessor of the
estate out of which the marriage expenses must be defrayed,
they considered that she was entitled to be consulted on the
one hand, and the male relations on the other, but that the
Court would probably interfere to compel the marriage of a
girl to a suitable husband, if chosen by either party, and
rejected without reasonable cause bv the other (y). Where
the paternal relations refuse to act or have disqualified them-
selves from acting, the maternal lelations of a girl can select
a bridegroom for the girl and ariange for her marriage (k) ,
Where the guaidian is about to clTect a mairiage which is
obviously injurious to the girl, the Court has power to inter-
fere, especially where his condiu t is actuated by improper or
interested motives. Such interference, however, would very
rarely, and only in extierne cases, be allowed, where the
guardian was the father (/j.

§ 103 The above rules are of importance so long as the
marriage rests in contract, and an attempt to give away a
girl in marriage by a person not authorised to do so would
be overruled by the Court upon a pioper application by the
person in whom the right was reposed (m) , A very different
question arises where the marriage has actually been cele-
brated. Even where the marriage is in contravention of
an injunction or order of a Court obtained at the instance
of the guardian having the preferential right, nevertheless,
it has been held that the marriage, when once solemnised,

(/?) Niindlal v Tapeedas 1 Bor, 14 (16), Nanabhai v Janardhan
(1888) 12 Bom, 110, Shenkappa Setiapa v Revana 17 Mysore, 33
(i) Ram Biinsee v. Soobh Koonwaree 7 W R , 321.

(/) Namasevayom v Annamma 4 Mad, HC, 339, Mt Ridiyat v.
Madkowjee 2 Bor, 680 (739) ; Kumla Buhoo v. Miineeshunkur, ib , 689
(746)

(A:) Kai>turi v Chiranji Lai (1913) 35 All, 265, Kastiin v Parma
Lai (1916) 38 All , 520, in 35 All, 265, which is referred to in 38 All.,
520, the girl was 16 ytars old and a major under Hindu law at the
lime of mairiage ancl she was given in marriage by her maternal
relations against the wish of her paternal relations who desired to
make a profit by marrying her to a one eyed man Khanchand v.
Raushan Das AIR, 1932 Lah , 129.

(/) Shri^har v Hiralal (1888) 12 Bom, 480. \

(m) Khushalchand v. Bai Mam (1887) 11 Bom., 247, 253. '

PARA. 103.]

RIGHTS OF GUARDIANS.

149

is valid (/i). TTie principle running through these cases is
that the rules regulating the order of guardianship in marriage
are directory and not mandatory and therefore a breach of
them does not render the marriage invalid. Where a minor
girl is a ward under the Guardians and Wards Act, the Court
has no right to force a selection of a bridegroom on the minor
girl against her wishes and against the wishes of her personal
guardian (o). The right of a parent to arrange for the
marriage of his children is personal to him which he cannot
in his lifetime delegate to another (p). In V enkatacharyalu
V. Rangacharyalu (q), where a mother caused her daughter’s
marriage to be duly solemnised without her husband’s consent
and the purohit was falsely informed by her that her husband’s
consent had been given, and where, nevertheless, it was^ found
that she acted bona fide in the interests of her daughter
desiring to secure a suitable husband, the Madras High Court
held that the marriage was valid and irrevocable. They laid
down that (1) where there is a gift by a legal guardian and
the marriage rite is duly solemnised, the marriage is irrevoca-
ble and that (2) wheie a girl is abducted by fraud or force
and married, and there is no gift either by a natural or legal
guardian, there is a fraud upon the policy of the religious
ceremony and there is therefore no valid religious cere-
mony (r). In a suit for a declaration that a marriage is
invalid which can be brought in the ordinary Civil Court, the
Court may in proper cases not only declare the marriage
null and void but also restrain the person alleging himself
entitled to the rights of a husband from enforcing any claim
to the custody or person of the woman (5) .

(/i) Khushalchohd Lalchnnd v. Bai Mam (1887) 11 Bom, 247; Bai
Diwali V. Moti Karson (1898) 22 Bom, 509; Gajja Nand v The
Crown (1921) 2 Lah , 288, Bnndabun Chandra Kurmokar v. Chundra
Kurmokar (1886) 12 Cal, 140.

(o) Salubai Ganesh v. keshavarao Vasudeo (1932) 56 Bom., 71, 76.
As to the powers and diilieb of a court in dealing with the marriage
of minors under the Guardians and Wards Act, «-ee aUo Monijan Bibi
V. District Judge, Birbhum, (1914) 42 Cal., 351.

(p) Alma Ram v. Banka Mai (1930) 11 Lah., 598.

(^) (1891) 14 Mad, 316, following Norman, J, in Aunjona Dasi
V. Prahlad Chandra Ghose (1871) 6 Beng. L.R., 243, 254.

(r) Bai Rulyat v. Jayachand, Bellasis, 43; Madhoosoodhan v.
Jaduo Chandcr, 3 W.R., 194; Bnndabun Chandra Kurmokar v. Chandra
Kurmokar (1886) 12 Cal., 140, Khushalchand Lalchand v. Bai Mam
(1887) 11 Bom., 247; Ban Diwnli v. Moti Karson (1898) 22 Bom., 509;
Ghazi V. Sukru (1897) 19 All., 515 » Ankamma v. Bamaneppa (1937)
M.L.J., 192; Appibai v. Khimji Cooverji (1936) 60 Bom., 455, 468. A
marriage would also be invalid if the girl was abducted by force
and fraud and married against her will when she is a majoi under
Hindu law. Cf. Scott v. Sebright, 12 P.D., 21.

(s) Aunjoona Dasi v. Prahlad Chundr-
253 .

150

MARRIAGE AND SONSHIP.

[chap. IV,

Infancy.

Physical or

mental

capacity.

§ 104. While, in Vedic times, adult marriage appears to
have been common, m the Sutra and later periods, child
marriage, so far as the bride was concerned, became normal;
but the husband was as before an adult. Girls were married
between the ages of 8 and 12 (/) . Three years after she
becomes marriageable, a girl is at libeit\ to choose a husband
for herself (w). For all practical purposes, this means the
attainment of majority under Hindu law, which is the com-
pletion of the fifteenth year as interpreted by the Bengal
school, and the completion of the sixteenth year as interpreted
by the Mitakshara School (i;). The age of majority iindei
Hindu law (ontinucs to be the same in matters of marriage
even after the Indian Majority Act (IX of 1875).

Infhnt marriages have been common enough in all castes
and in all parts of India. But the recent Child Marriage
Restraint Act (XIX of 1929) which is the law of British India
for all persons, has made it punishable for a male above
eighteen years of age to marry a girl below fourteen or foi
persons to perform, conduct or direct the mairiage of males
under eighteen, and of females under fourteen Such
mairiagc's, though restrained, are not invalid iv^) . Children
of any age can accoiding to the Hindu law be validl\ maiiied
The marriage of Hindu children is therefore the result of an
arrangc^nicnt between the parents and the children can
exercise no volition (tv),

105. The marriage of a lunatic, an idiot or an impotent
person is invalid under the Hindu law(rr). The decision
of the Privy Council in Maujilal v Chandrabali (j) so far

(t) Mann, IX, 94, Gaiit , XVIH, 21, Va- , XVII, 71, Baiidh , IV,
1, 11, accordinj; to Kantilva's Arthasa<-trd, the apt* of dibcrelion wa*-
12 for girls and 16 for hoys. III, 3, 1, 2, Shanidsastn, 190.

(a) Manu, IX, 90, Vishnu, XXIV, 40, she can choose a husband
afler three seaMuis or year'-. Va« , XVII, 68, Baiidh , IV, 1, 14.

(c) Nar, 1," 35, Dig, I, 202, Kullukd s gloss on Manu, VIII, 27;
Vyav Dharp , 1, 591, Vyav ( handrika, II, 590
(t;i) Ram v Chand 119371 2 CaL, 764

{w) Piirshotamdas Tribhorandas v Piirshotamdas Mangaldas (18971
21 Bom , 23, 27, 30

ix) “A damsel betrothed to one devoid of character and good
family or affected by impotency, blindness and the like or an outcast e
or an epileptic or an infidel or incurably diseased or to one who is an
ascetic or when she has been married to a sagotra, should he taken
away from him and married to another ” V^asishtha cited in J C. Ghose,
H.L.1 , 850. “Madness, being an outcaste, leprosy, impotence, being
both of the same gotra, being devoid of sight and hearing and being
afflicted with epilepsy, these are stated to Ije the blemishes in a suitor
as also a maiden.” Katyayana cited in Parasara Madhavivam
[translated 1 M.L.J. (reprint), 6641.

(y) 38 I.A., 122. 38 CaU 700.

PARA. 105.]

INCAPACITY TO MARRY.

151

as it goes, proceeds on the view that insanity at the time of
marriage when it is clearly made out, makes the marriage
invalid. In V enkatacharyulu v. Rangacharyulu ( 2 ), it was
•observed that a marriage is “not a mere contiact in which
a consenting mind is indispensable. The person married
may be a minor or even of unsound mind, and yet, if the
marriage rite is duly solemnised, there is a valid marriage”.
This, in so far as the lunatic is concerned, appears to be
erroneous. That judgment itself recognised that the mere
performance of the marriage riles is inoperative, when there
is fiaud or force, to make a marriage valid. Because there
<*an be a marriage of childien, it is eironeous to assume there
can be a marriage of insane persons. In the one case, normal
mental capacity is soon reached; in the other case, it is a
very abnormal condition which may persist indefinitely. It
would be a gross breach of duty on the part of a parent or
guardian to mar/y his infant son or daughter to an insane
person. Nor can he have power to give his insane child in
niairiage. Moreover, authoritative commentators aie inclined
to the view that impotent persons, lunatics and idiots cannot
contract a legal marriage. The text in Manu runs as follows:
‘Tf the impotent and the rest should somehow or other desire
to take wives, the offspring of such among them as have
children is worthy of a share*’ (a). Kulluka's gloss clearly
says that the impotent and the rest have no capacity to
marry. ‘The rest’ includes idiots and lunatics as well as
•outcastes, lame men and those born blind, deaf or dumb.
Except impotent persons, lunatics and idiots, the others
mentioned above, however, have physical and mental capacity
foi marriage and their marriages will therefore be valid.
Medhatithi inclines to the view that impotent persons and
lunatics are not entitled to marry, as they are not entitled to
the performance of any religious rites. But he considers
that the blind, the lame and the sterile, who is not impotent,
are fit for ceremonies and could marry Sarvajna Nara-

yana also considers that an impotent person cannot contract a
legal marriage (6). The commentators generally explain
Maiiu’s text as applicable to cases where the disqualification
arises after marriage. According to the texts of Yajn. I, 52

(z) (1891) 14 Mad., 316, 313.

(а) Manu, IX, 203.

(fli) Medhatithi on Manu IX, 203. Jha, Vol. V, 167-168.

(б) Kulluka’s comment on Manu, IX, 203: *The impotent and
the rest have no capacity to marry” {*Kleebadayah V ivqfianarhah\ See
jiote to Dr. Buhler’s trans. S.B.E., Vol. XXV, 373).

Marriage of

lunatic

invalid.

Also of

impotent

person.

152

MARRIAGE AND SONSHIP.

[chap. IV>

and 55, as interpreted in the Mitakshara (c) neither avu
impotent man nor a sexless woman can marry. The provision
ds to the inheritance of the aurasa issue of lunatics and
idiots or impotent persons does not necessarily mean thajt
the defects were congenital or that they were present at the
time of marriage (d). Accordingly, the Smriti Chandnka,
the Parasara Madhaviyam, the Madana Parijata and the
Vaidyanatha Dikshitiyam lav down that lunacy, idiocy and
impotencv are disqualifications for marriage (e). The exclu-
sion from inheritance is one thing and the disqualification
for marriage is quite a different thing. There is certainly no
clear rule of Hindu law that a person who is, at the time of
marriage, a lunatic, idiot or impotent man, can validly marry.
In the absence of any rule of Hindu law, principles of justice,
equity and good conscierue must be applied (/) and this is
in consonance with the injunction m Manu IX, 89 which
limits the power of the father.^ The maiden ^hough marriage-
able, should rather ‘^top in her father’s house until death, thatr
that he should ever give her to a man destitute of good quali-
ties” (g). Though marriage is certainly a sacrament, it is
also either a contract between the paities or a gift by the
parent or guaidian.

Just as a marriage within the prohibited gotra or degrees
or a marriage brought about by fraud or force is altogether
invalid, notwithstanding the perfoimances of the marriage
rites, so too, a gift and aiceptance by parent or guardian of
a lunatic, an idiot or an impotent man being invalid, th6
performance of marriage rites does not constitute the relation-
of husband and wife. In the one as in the other, there is
a fraud on the policy of the marriage ceremony. This
conclusion is in accordance with the cleai general principle
of Hindu law that marriage is for the perpetuation of one’s

(c) “Woman” — to prohibit marriage with a sexless, woman, the
womanhood mint he examined (Vidyarnava’s trans , 93) “The liride-
groom bhoiild he one whoM* manhood has been ttsitd’ \ajn, J, S5
(Mandlik, 168).

(d) Tile impotent, the lunatic and the idiot are forbidden to have
adopted sons The Kshelraja is now prohibited Vijnanesvaia himself
admits that the impotent man cannot have an aiiiasa son (Mil , it,.
X, 11).

(e) Sniriticliandrika, Samskarakanda, 211, 221 (Mysore edii ) ,
Parasara Madhaviyam Llrans m 1 MLJ (joiiinal) 664 J , Madana
Parijata, 142 (Calcutta edn ) , Vaidyanatha Dikshitiyam, trans in 6
M.L.J. (jouinal), 465.

(/) Kenchava v. Girimallappa (1924) 51 T A , 368, 48 Bom., 569.

(^) Manu, IX, 89, The Viramitrodaya construes the word ^Gdmya
as being free from defects. That the maiden is to he free fiom
incurable dis^^ses is also laid down in Yajn , I, 55. In Yajn., 1, 63,
wliere a maiden is given a choice, she is to select an eligible bridegroom..

PaRAS. 105 & 106.] PROHIBITED DECREES.

153

line. It is therefore necessary that the bride and the bride-
groom should be physically capable of consummating the
marriage if adults, at the time of marriage, or if children,
when they would be adults in the course of nature.
The exact degree of mental or physical incapacity and
whether it is incurable or not, are important considerations
in determining the question, whether the disqualification has
been clearly made out; and as to impotency, the rule of
English law, that third persons have no right to insist upon
an enquiry and that the validity of the marriage cannot be
impeached on that ground, after the death of one of the
parties, appears to be a sound principle of justice, equity and
good conscience, properly applicable to India {h) . Where
archaic rules of Hindu law very plainly transgress the rules
of justice, equity and good conscience, they cannot be
enforced (i). The marriage of an impotent person, not being
merely sterile, or of a lunatic or of an idiot clearly tends to
promote immorality and may also be regarded as contrary
to public policy.

§ 106. In the early ages, the prohibitions against mar-
riages within the gotra or within certain degrees of kinship
which are now so familiar were probably not firmly established.
From the Satapatha Brahmana, for instance, it appears that
|he prohibition extended only to the third or fourth degree (;).
But, by the time of the Grihya Sutras, the rule had come into
force that a man should lake for his wife one who is not of
the same gotra or who is not a sapinda of his mother (A;).

(h) Hancock y Peaty LR., I, P. & D., 335 A B and another
L.R., 1, P. & D., 559. Newbould v Attorney General (1931), P., 75.
The case in Purshotamdas v. Bai Mam (1896 ) 21 Bom, 610, does not
decide that an eunuch can validly marry. It only decides that an
impotent person cannot sue on the ground of her own impotence on
the authority of the English cases. The rule however is not absolute.
10 Hals. 2nd edn., para 937. 16 Hals. 2nd edn , para 848 note (e) .

(t) Sir G. Banerjee considers that the marriage of idiots, lunatics
and eunuchs cannot be valid, M & S, 5th edn., p. 40. Chose,

H. L.I., 784 points out that idiots, lunatics and others cannot
take part m the vedic ceremony of marriage and that such marriages
are invalid. In Kanahi Ram v. Biddhya Ram (1878) 1 All, 549, where
impotency was not established, the question whether under Hindu law,
marriage could be dissolved on the ground of bridegroom's impotency
was raised but was not decided. In Deo Kishen v Budh Prakash
(1883) 5 All., 509 F.B., there is a dictum at p. 513 based upon a
passage in an earlier edition of this work, that insanity does not
disqualify a person for marriage; but see MoujilaVs case (1911) 38

I. A., 122; 38 Cal., 700.

(;) Satap. Brah., I, 8, 3, 6; S.B.E., Vol. XII, 238; Vedic Index,
I, 475.

(k) Gobhila, III, iv, 4 and 5; S.B.E., Vol. XXX, 82, .Hiranyakesin,
1, 19, 2; S.B.E., Vol. XXX, 186; see also Jolly, L & C, l/7, 138.

Prohibited
degrees of
marriage.

154

MARRIAGE AND SONSHIP.

[chap. IV,

According to Gautama and Vasishtha, the prohibited degrec*s
were four on the mother’s side and six on the father’s side;
and according to Vishnu, Yajnavalkya and Narada, five on the
mother’s side and seven on the father’s side ( 1 ) , All these
writers add the restriction that the bride and the bridegroom
must not be of the same gotra or pravara. The difference
in the statement of the lule was evidently due to the fad
that the reckoning was, in the former case, exclusive, and
in the latter, inclusive, of the bride or the biidegioom. Mann
says: “A damsel who is neithei a sapmda on the mother ^

side nor belongs to the same family on the father’s side i«^
recommended to twice born men for wedlock and conjugal
union” (m), and‘ that the sapmda relationship ceases with
the seventh person (/il. Distinguishing between cognates and
agnates on the question of degrees, Yajnavalkya enjoins that
“a man should inairy a girl .... who is not a sapmda ot
him .... and who is descended from onc^ whose gotra and
pravara aie different from his and who is removed five
degrees and seven degrees on the mother’s and father’s side
lespeclively” (o).

Older view of
*9apinda’.

§ 107 In a well known passage, Vijnanesvaia. < ominent-
ing upon the above text of Yajnavalkya, defines sapinda
relationship as arising between two people through their being
connected by particles of one body, expressly departing from
the previous tradition(/j ) . Prior to Viinanesvara, sapindaship
meant only connection by funeral oblations and as a
man’s six immediate ancestors were eithei the recipients of
undivided or divided oblations, the relationship was confined
to membeis of the same agnatic family (sagptias). The text
of Manu that sapinda i elation ceases with the seventh pers(»n
was explained by Medhatithi in that sense and as Kulluka

(/) Gaul , IV, 3, 5, S B E , Vol. 11, 196, 197, Vas., VIII, 1, 2; Apas.,
IT, V, 11, 16, SBE, Vol II, 127, Vishnu, XXIV, 10, Yajn , I. 52,
53, Narada, XII, 7.

(ni) Manu, III, 5 Visvarupa and Kulluka however apply lie
seven degrees to relations through mother also.

(/i) Manu, V, 60, the context shows that it is sagolra sapinda
relationship that is referred to.
io) Yajn, I, 52, 53

(p) For the oblation theoiy of his predecessors who follow Manu
and Baudhayana see, for instance, Visvarupa’s Balakrida, 62, 6.1
(Trivandrum edn.) ; Medhatilhi’s comment on ‘sapmda’ in Manu, V,
60, Nilakantha in his ‘Samskara Mayukha’ says that Vijnanesvara
abandoned the theory of connection through the rice-ball offering and
accepted the theory of transmission of constituent atoms. [Samskara
Mayukha, Gl^rpure’s edn., 50, translated in LallubhaL v. Mankuverhm
(1876) 2 Bom., 388, 4261.

PARA. 107.]

DEFINITION OF SAPINDA.

points out, it did not include the maternal grandfather and
the rest, though they were connected by pinda (q). At the
same time it was settled that where there are two branches
of sagotra descendants from a common ancestor, they are
^apiiidas and the ‘degrees are to be counted from that person
from whom the two lines bifurcate’ (r). Evidently the word
‘sapinda’ as understood before Vijnanesvara’s time did not
cover all cases of persons who according to usage had come
to be recognised as heirs or to be within prohibited degrees
for marriage. And theie were no definite rules regarding
cognates. Vijnanesvara therefore had to discard the old
meaning of the word ‘sapinda’ on the ground that it did not
cover all cases for which the law had either provided or
should, in his view, provide. On the older meaning of the
word ‘sapinda’, he considered that there would be no sapinda
leldtionship in the mother’s line or in the brother’s sons
and the rest (5). He expressly says: “the sapinda relation-
ship does not depend upon the relationship of the deceased
through the offering of pindas and his getting it or
not, because such a definition is open to the objection
of not including every case” (^). Dr. Jolly considers that
the new etymology of connection by particles of one’s body
which Vijnanesvara intioduced was thoroughly artificial (wK
It was ceitainly original; but the revolution which he effected
thereby both in the mode of approach and in the rules of
Hindu law has been of abiding value and has had far-reaching
consequences. While the rules which he laid down were

((/) Manu, 60, comments by Medhatithi and Kiilluka; Daya-
)>liagd, XI, 6, 12-13

(r) See Medhatithi on Maim, V, 60, Jha’s irans., Vol. Ill, part 1,
74 and Smnti Sangraha (r. 900 A.D.) cited in the Nirnaya Sindhii
and Dharma Sindhii and Balamhhatti.

(s) Acharadhyaya, Vidyarnava’s trans., 97, As to mother’s line,
they were only sapindas in the older bcnse of the* man’s mother.
Gant, XV 13.

(r) ibid, page 340 on Yajn., T, 254. The word in the Mit. is
*avyapakatvat* (non-pervasion). Vijnanesvara probably thought that
the sons of a man’s fathei’b maternal uncle or aunt as well as unmarried
daughters of his agnates were not strictly covered by the word ‘sapinda’
meaning connection by oblations. His reference to brother’s sons as
not covered by the word in the older sense is more obscure as it is
inconsistent with Medhatithi’s explanation of ‘sapinda’ that two branches
of agnates from a common ancestor are sapindas. To that extent,
connection by oblation must have included not only the direct line of
offeror and offeree, but also two lines of agnates offering pindas to
one ancestor. The Balambhatti and Madanaparijata which fully accept
Vijnaneswara’s new definition explain the need for it (cited m
JSarvadhikari, 2nd edn., 380-1, 477).

<u) Jolly, T.L.L., 171.

156

Mitakshara
definition of
bapinda.

MARRIAGE AND SONSHIP. [CHAP. IV^

generally followed, his definition itself was not universally
accepted (v).

§ 108 , The passage in the Mitakshara runs as follows:
“He should marry a girl who is non-sapinda with himselL
She is called his sapinda who has particles of the body of
some ancestor, etc., in common with him. Non-sapmda
means not his sapinda. Such a one he should marry.
Sapmda-relationship arises between two people through their
being connected by particles of one body. Thus the son
stands in sapinda relationship to his father because of parti-
cles of his father’s body having entered his. In like manner
stands the grandson in sapinda-relationship to his paternal
grandfather and the rest, because through his father, particles
of his grandfathei’s body have entered into his own. Just so
IS the son a sapinda relation of his mother, because particles
ol his mother’s body have entered into his. Likewise the
grandson stands in sapinda-relationship ,to his maternal
grandfather and the rest through his mother. So also is the
nephew a sapinda relation of his maternal aunts and uncles,
and the rest, because particles of the same body (the maternal
grandfather) (v^) have entered into his and theirs; likewise
does he stand in sapinda-relationship with paternal uncles and
aunts, and the rest. So also the wife and the husband are
sapinda-ielations to each other, because they together beget
one body (the son). In like manner, brothers’ wives also
arc sapinda-relations to each other, because they produce one
body (the son) with those (severally) who have sprung from
one body (i e , because they bring forth sons by their union
with the offspring of one person, and thus their husband’s
father is the common bond which connects*them) . Theiefore
one ought to know that wherever the word sapinda is used,
there exists between the persons to whom it is applied a
connection with one body, either immediately or by descent.’^

Then after lefuting certain objections to his explanation
of the word ‘sapinda’, Vijnanesvara proceeds thus: “In the
explanation of the word ^^asapindani (non-sapmda, verse 52 ),

(i;) Aparaikd 1 translated in 21 M L J. (jouinal), 314-3171 and the
Sinriticliandrika (Sainskarakanda, Mysort edri , 180) though later than
the Mitakshara, adhered to the older theory of ‘sapinda’ as connection
by offerings. Madhava stales both the views and requires that both
the rules should be followed in the selection of a bride LParasara
Madhaviyam, VoJ I, part ii, 59, trans m 1 MLJ. (journal) 4631.
hce Jolly, T.L.L , 174.

The term ‘paternal grandmother’ in West and Buhler's transn,
which IS repeated in the cases is a mistake for ‘maternal grandfather’.
The context'^^is quite clear Mit , Vidyarnava’s trans. 94.

PARA. 108.]

DEFINITION OF SAPINDA.

157

it has been said that sapinda-relation arises from the circum-
stance that particles of one body have entered into the bodies
of the persons thus related either immediately or through
transmission by descent. But inasmuch as this definition
would be too wide, since such a relationship exists in the
eternal circle of births, in some manner or other, between all
men, therefore the author (Yajnavalkya) says:

Verse 53: — ‘After the fifth ancestor on the mother’s Rules of
and after the seventh on the father’s side’: On the mother’s hmitation.
side in the mother’s line, after the fifth, on the father’s side
in the father’s line, after the seventh ancestor, the sapinda*
relationship ceases; these latter two words must be under-
stood; and therefore the word sapinda, which on account of
its etymological import (connected by having in common),
particles (of one body) would apply to all men, is restricted
in its signification, just as the word pankaja (which etymolo-
gically means ‘growing in the mud’, and therefore would
apply to all plants growing in the mud, designates the lotus
only) and the like; and thus the six descendants, beginning
with the son, and one’s self (counted) as the seventh (in
each case), are sapinda-relations” {w).

“In case of a division of the line also, one ought to count
uplo the seventh ancestor, including him with whom the
division of the line begins (e.g., two collaterals, A and B
are sapiiidas, if the common ancestor is not further removed
from either of them than six degrees), and thus must the
counting of the sapinda-relationship be made in every
case”(:i;). “Accordingly it is to be understood that the fifth
from the mother is she who is in the line of descent from (any
ancestor of the mother) up to the fifth ancestor, beginning
with the mother, and counting her father, grandfather and
the like. Similarly the seventh from the father is she who
is in the line of descent from any ancestor upto the seventh
ancestor, beginning with the father and counting his father
and the like. Similarly (it is said) : In marriage, two
sisters, a sister and a brother and a brother’s daughter and a
paternal uncle, are taken to be two branches by reason of the
descent of the two from a common ancestor (from whom

(w) Translated by West and Biihler, “Digest of Hindu Law”, 3rd
ed. (1884), Vol. I, p. 120, quoted in Ramchandra v. Vinayek (1914)
41 I. A., 290 at pages 300-301, 42 Cal,, 384, Lallubhai Bapubhai v.
Mankuvarbai (1876) 2 Bom., 388; Umaid Bahadur v. Udoi Chand
(1880) 6 Cal., 119.

ix) Trans, by West and Buhler, cited in U/naid Bahadur v. IJdoi
Chand (1881) 6 Cal., 119 at page 125.

158

MARRIAGE AND SONSHIP.

[chap. IV,

Two divisions
of sapindas.

Limit of

sagotra

sapinda.

computation of the degrees is to be made among their
descendants)” (y).

According to the Mitakshara, the rule of non-sapinda
marriage applies to all classes, because sapinda relationship
exists everywhere. Therefore, it applies to Sudras and others
who may have no gotras of their own [z ) .

§ 109. Vijnanesvara’s definition of sapinda relation and
the lules he lays down for the limitation of sapinda relation-
ship, as given in the Acharadhyaya (chapter on ‘Established
rules of conduct’) are applicable nut only to marriage but
also to inheritance (a), for, he says expressly that ‘one ought
to know that wherever the word ‘"sapinda” is used, there exists
between the persons to whom it is applied a connection with
one body, either immediately or by descent’. He defines the
prohibited degrees within which a man or woman cannot
marry; within those degrees are also to be found the heritable
sapindas of the deceased owner, whether of the same family
or of another family. Taking his ( ommenls in the Achara-
dhyaya and the Vyavaharadhyaya together, his scheme is
perfectly clear and logical. He divides all sapindas into two
categories, (1) samanagotra or sagotra sapindas and (2)
bhinnagotra sapindas or bandhus. The sagotra sapindas are
agnates within seven degrees of the common ancestor, for, he
says, ‘In this manner, upto the seventh, must be understood
the succession of samanagotras’ (5) and the bhinnagotra
sapindas are cognates within five degrees of the common
ancestor.

§ 110. The reasons for the limitation pf seven degrees
for sagotra sapindas and five degrees for bhinnagotra
sapindas are obvious. For, ‘one is the giver of the pinda,
three, father, grandfather and great-grandfather are recipients
of the pinda and three beginning with great-great-grandfather

(y) Yiijn, I, 52, 53 and Mit Acharadhyaya, Vidyarnava’s trans ,
110, Sarvadhikan, 2nd edn , 470-473, Ganapathi Iyer, 443; cf. Sarkar^
H.L , 7ih edn , 84

(z) Vidyarnava’s trans of Acharadhyaya, 106. Mr. Colebrooke
overlooked Vijnanebvara’s definition in the Acharakanda and translated
the word ‘sapinda’ as connected by funeral oblations — an error which
was corrected by the Bombay High Court only in 1876 in LalluhhaCs
case.

(fl) Ramchandra Martand v. Vinayek V, Kothekar (1914) 41 LA,
290, 302, 303, 42 Cal, 384.

(6) Mitakshara, II, V, 5; the words ^Ityevam Asaptamat* have not
been translated by Mr. Colebrooke. See Buddhasingh v. Laltu Singh
(1914) 42 I.A\, 208, 218 ; 3? All, 604, 614, Jolly, TLL, 209-210.

PAKAS. 110 & III.] UMITS OF SAPINDA RELATION.

159

are recipients of divided pindas {lepasY (c). Or, as Vijna-
iiesvara himself puts it, the first pinda is efficacious upto the
fourth ancestor, the second pinda upto the fifth and the third
pinda upto the sixth (d) . As regards bhinnagotra sapindas,
the reason for the limitation of five degrees was that, as a
woman causes a change in the family, one had to offer
oblations to his mother’s father, grandfather and great-grand-
father and counting also the mother and himself, it became
five degrees. Though Vijnanesvara altered the basis of
sapinda relationship from the oblation theory into real con-
sanguinity, as he felt that some limitation of sapinda
lelationship was necessary, he retained the old limitations for
both sagotra sapindas and bhinnagotra si^pindas. Vishnu
4 iid Yajnavalkyd, if not Manu himself, established the rule of
offering pindas to the mother’s three immediate male ances-
tors (e). When Vijnanesvara refers to the sapinda relation-
ship ceasing in the father’s line after the seventh degree, he
is evidently lef erring to the sapinda relationship of sagotia
sapindas; the six ascendants beginning with the father aie
i learly the six ascendants in the male line and the six
4irscendants beginning with the son must equally be in the
male line (/). When he refers to a division of the paternal
line, he refers evidently to the collateral descendants in the
male line of his paternal ancestors upto the seventh
degree (g) .

§ 111. Baiambhatta, in his commentary on the Mitakshaia,
says that in counting persons of the same gotra, the sapinda
relationship ceases with the eighth degree in the case of the

(c) See the text* of Matsya Parana cited by Kiilluka in his glo«-s
on Manu, V., 60, (p. 211), Parasara Madhaviya, Vol. I, Part II, 58,
^fid in Nirnayasindhu, 560 (Setlur trans., 555).

(d) Mit. on Yajn., I, 254, Vidyarnava’s trans , 340.

(e) Yajn, I, 24.2-243; Vishnu, LXXV, 7, Manu, IX, 136. The-e
refer to a daughter's sons’ obligations as distinguished ,fiom the moie
ancient obligation of the putrikaputra.

(/) Cf. Sarvadhikari, 2nd edn., 495.

(g) This is necessarily implied from the admitted requirement lliat
Uie ascending line must be the male line; since, for the sixth
descendant of the man himself or for the sixth descendant of any of
his ancestors, his (the sixth descendant’s) “father’s line” will he the
line of his ascendants, namely, father, grandfather, etc., in the male
line. The Mitakshara in all probability uses the term *santana* both
here as well as m Ch. II, V, 3 and 4, to mean male line. Buddha
Singh's case (1915) 42 LA., 208, 37 All., 604, 616. The observations
of Spencer, J., in Kesar Singh v. Secretary of State (1926) 49 Mad.,
652 at 660 that the Sanskrit word *santana' does not appear to
denote male ancestors and male descendants ‘exclusively’ and that
tlie word *Purusha* means ‘a man’ are based on a misconception.
*Pitrusha* in the context means only *a degree’.

lamit of

Bandhu

relation.

160

MARRIAGE AND SONSHIP

[chap. IV,

Computation.

boy or the ^rl but in counting persons of bhinnagotra,
sapinda relationship ceases with the sixth degree ih). Mitra-
misra, in his Viramitrodayatika states: “Of persons belonging
to different gotras, the sixth and the seventh are not included
in the sapinda limit” {h^) In Ramachandra s case(i), the
Judicial Committee held that Yajn. I, 52 and 5H and Vijna-
nesvara’s commentary thereon prescribed the limitation of
seventh degree as regards sapindas of the same gotra, and the
limitation of fifth degree as regards bhinnagotra sapindas.
Thev further observe that ‘this bond comes to an end with the
fifth degree when the descent is through a female (/). It
IS immaterial whether it is through one’s own mother, one’s
father's mother or one’s grand-father’s niothci The right
view is that the five degree limit is applicable to all bhinna-
gotra sapindas irrespective of the question whether they are
bandhiis of the propositus, through his mother or
through his father Therefore, the rule is stated
comprehensively that sapinda relationship ceases in the case
of the bhinnagotra sapindas with the fifth degree from the
(’ommon ancestor, that is, in the line where a female or
females intervene (A). As will appear in the course of this
discussion, this is the only logical and consistent position on
the plain inteipretation of the Mitakshara.

§ 112 There is no difficulty in the computation of degrees
in the direct line (/). It is now well settled that as regarcb
two branches from a coinmon ancestor, whether both the lines
are his sagotia sapindas or his bhinnagotra sapindas or
whether one line contains his bhinnagotra satnndas and the

(//) Balambhatti, Gharpure's ecln , 194, Vulyarnava’s Irans

Acharadhyayd, 111

</i^) Stc Viramilrodaydlika, Gharpiirt’s lians, 157 8, page lOl
as to differing usages

(t) Ram( handra Martand v Vinayek V Kothekar (1914) 41 I A..
290, 307, 308 ; 42 Cal , 384 “It is quite clear therefore that the
limitation of the ‘seventh degree with regard to samanagotra sapinda*-
given by Mitramisra m his Viramitrodaya is taken from the lulc
enunciated by Vijnanesvara on Yajn. in the Acharakanda in respect
of the cessation of sapinda relationship.”

(/) ibid, 41 LA , 290, 309, 311

{k) ibid, 41 I A , 290, 312. This was reiterated in Adit Narain v.
Mahabir Prasad (1921) 48 I.A., 86, 95; 40 M.L J , 270; 25 C.W.N.,
842. “A bandhu must, in order to be heritable m a female line, fall
within the fifth degree from the common male ancestor”, see also per
Kanhaiyalal, J , in Harihar Prasad v Ram Daur (1925) 47 All . 172,
176, per Jwala Prasad, J , in Umashankar v. Mt, Nageswan (1918)
3 Pat LJ, 663 , 48 I C, 625, 643 F.B.; per Sulaiman, J, in Gajadhar
V. Gaunsankar (1932) 54 All, 698 at p. 714, 716 F.B.

(/) The Mitakshara computation is m effect the same as the
ordinary metllod (Sarvadhikari, 2nd edn., 498).

PARAS. 112 & 113.] UMITS OF BANDHU REI^ATION.

161

Other line contains exclusively his sagotra sapindas, the com-
putation of sapinda-relationship is only from the common
ancestor, in all cases, in each line. Ramchandra’s case has
settled this point (/n). Not only is the Mitakshara quite
explicit on this matter but the Balambhalti, the Nirnaya-
Sindhu and the Dharma Sindhu are all agreed on it (/i). The
degree of sapinda relationship of a person in each of the lines
is to be reckoned by his distance from the common ancestor.

§ 113. There are dicta in some of the judgments of
Courts (o) and expressions of opinion by some writers on Hindu
law (p) relying upon some statements contained in the Nir-
naya Sindhu and the Dharmasindhu, two digests of ceremonial
law, to the effect that the limitation of five degrees is only as
legards bandhus related through one’s mother and not to
cognates related through one’s father’s mother. As to the

(m) Ramchandrjt Martand v Vinayek V Kothekar (1914) 41 I.A.,
290, 42 Cal , 384, Adit Narain v. Mahahir Prasad (1921) 48 I A , 86, see
dlbo Ram Sia v Biia (1925) 47 AIL, 10, Harihar Prasad v. Ram Daur
(1925) 47 All, 172, Gajadhar Prasad v. Gauri Shankar (1932) 54 All,
698 F.B., Kesar Singh v. Secy, of State (1926) 49 Mad , 652. The modes
of counting in the following cases are mcorrerl Shib Sahai v. Saras-
wathi (1915) 37 All., 583, where the court counted the degrees from
the claimant on the one side to the deceased owner. See also per
Jwala Prasad, J., in Gma Shankar v. Mt, Nageswari 3 Pat., L.J,, 663,
48 I C , 625 F.B.; ‘Adopting the mode of computation laid down m
the Mitakshara, the sister’s daughter’s son is five degrees removed
from the common ancestor’, whereas he is only removed by four degree^
and a maternal uncle was con«^idered as removed by four degrees from
his nephew whereas he is only in the second degree. ln\V enkata v
Subadra (1884) 7 Mad , 548, the court, in discussing prohibited degrees,
counted a man’s maternal grandfather’s brother’s daughter’s daughter
as standing in the sixth degree and therefore held her eligible for
marriage whereas really it was a case of four degrees and so ineligible
for marriage.

(n) Balambhatta’s gloss, see Mitakshara, Acharadhyaya, page 111
(Vidyarnava’s trans.) , Nirnayasindhu, 216; (here the enumeration must
be made from the common ancestor); also Setlur trans., 561; Balam-
bhatti, Gharpure’s edn., 190-194, Dharma Sindhu, cited m Mandhk,
347. See also the text of Smriti Sangraha cited in Mandhk, 347,
trans. 31 L.W. (journal), p. 17.

(o) Per Spencer, J, in Kesar Singh v. Secy of State (1926) 49
Mad., 652, 660, 664, 665; per Venkatasubba Rao, J., in 49 Mad., 652,
682, 690, Ram Sia v. Bua (1925) 47 AIL, 10, 12, per Mukherjee, J.,
in Harihar Prasad v. Ram Daur (1925) 47 All, 172, 178, 179, and in
Gajadhar Prasad v. Gauri Shanker (1932) 54 AIL, 698 F B. In Babu
Lai v. Nanku Ram (1895) 22 Cal., 339 at 345, it is apparently assumed
that seven degrees apply to bandhus on the father’s side.

(p) Sarvadhikari, 2nd edn., 599, 600; Bhattacharya 2nd edn., 90

(notes to diagrams) ; Mandhk, 345-347, he summarises the rules and
tables from Dharmasindhu thus* “Begin with the bride or the bride
groom and count, exclusive of both, six or four degrees upwards
according as their relationship with the common ancestor is through the
father or mother respectively and if the common ancestor is not reached
within those degrees on both sides, then only they are not sapindas
and marriage between them can be solemnized.” *

12

Five degrees
for all
bandhus.

162

MARRIAGE AND SONSHIP

[chap. IV,

latter, it is said that they must be deemed to be in the father’s
line and therefore, the limitation of seven degrees applies.
In other words, one’s father’s maternal line is placed on the
same footing as one’s father’s paternal line. The expression
‘seven degrees in the father’s line’ is read as meaning the
descendants, upto the seventh degiee, through males oi
females, of paternal ancestors, upto the seventh degree. This
involves more than one fallacy.

As already explained, the Mitakshaia contemplates, when
leckoning from the father, only ancestois in the male line or
descendants in the male line or collaterals in the male line
as it assumes all 'of them to be sagotra sapindas. This view
IS confirmed by what Vijnanesvara says in the Vyavahara-
kanda Sharply differentiating between bhinnagotra sapindas
and sagotra sapindas. he applies the seven degree limit only
to the latter, and he makes no difference between one kind of
bhinnagotra sapindas and another He ifowhere refers to
different limits of sapinda lelationship for different groups of
bhinnagotra sapindas On the othei hand in elucidating
Yajnavalkya's text, he relies upon a text of Brihat Manu
which confines the seven degree limit only to sagotia sapin-
das (p^) And the gloss of Kiilluka on Manu v.. 60, makes
it perfectly clear that the limit of seven degrees in sapinda
relation is only with respect to sagotia sapindas (p“). In the
second place, there is no reason why, while one’s own
maternal line is shortened to five degrees, one’s father’s
maternal line should lengthen the line of sapinda relationship
to seven degrees In the case of a man’s own maternal line
at least, pindas aie offered by him to the immediate male
ancestors of his mother but he offers no pinda to the father’s
mother’s male ancestors Moreover, if we add him and his
father to the latter’s mother and her three male ancestors, it
would make only six degrees which is a fatal objection to
the applicability of the seven degree rule to bandhus.
Again, when one has to compute thiough one’s father in his
maternal line, it is contrary to the express indications which
Vijnanesvara has given, to call it the father’s line, for, the
father’s line is through his father, grandfather, etc When
the father’s mother is counted as a degree, it is really the
father’s mothei’s line, it being a different family altogether
just as in the case of one’s own mother’s line, the relationship

(pM Mit , IT, V, 5, 6

(p2) See the whole question discussed fully in the judgment of
the District Judge and in the arguments reported in Ram Chandra
V. Vinayek l'i914) 20 C.L.J , 573, 580,

t>ARAS. Il3 & 114.] . LIMITS OF BANDHli RELATION. 163

in that family is not traced through his father but from his
father’s mother in her father’s line.

It is wrong to impute to Vijnanesvara that he
intended, without any principle or reason, to mean
by the father’s line, also the father’s mother’s line
and that he bracketed together the sagotra sapindas and
the bhinnagotra sapindas of one’s father in the same category.

On the other hand, Vijnanesvara groups pitru bandhus and
matru bandhus together and, among atmabandhus, brings in
the maternal uncle’s and maternal aunt’s sons along with the
paternal aunt’s sons. Moreover, the reasonable inference
seems to be that the reference to ‘mother’ in the limitation of
five degrees is for the purpose of indicating cognate relation-
ship generally (g). As is not unusual in other parts of the
Mitakshara, the word ‘mother’ may well be taken to refer to
any female ancestor whose intervention anywhere in the line
causes a changev of gotra or family. This inference is
supported by Balambhatta’s commentary on the Mitakshara:

“Therefore, by being in the direct generations and being
comprised in the group of five commencing from the kutastha
and his four descendants, even though she may occupy the
position of the second or subsequent, she is to be called ‘the
mother’ (ma/aj” (r). From the citation in the Mitakshara
referring to two sisters or a sister and her brother, or a
brother’s daughter and the paternal uncle, forming two
branches having a common beginning, it is clear that a woman
can intervene in the second or third degree as Balambhatta
says.

§ 114. Kamalakara, the author of the Nirnaya Sindhu, says
that a bridegroom m the eighth degree may not marry a bride
in the second or third degree from the common ancestor. Even
though the bride is no sapinda of the bridegroom, as the
bride is within five degrees from the common ancestor, he
becomes a sapinda of the bride also and no marriage should
take place between them ( 5 ) . Balambhatta in his comment-
ary on the Mitakshara ridicules this view as fantastic. He

iq) In this diagram, A’s daughters great-grand
son, B, will be A’s bandhu and not B’s son C
See article by Mr. P. R. Ganapathi Iyer in 8 M.L.J
(journal), 323.

(r) Balamhhatti, Gharpure’s edn., 191.

is) Nirnayasindhu, Setlur’s trans , 561; the illustration taken by
Kamalakara will be academic if it is a case of Brahmins having rishi
gotra, for both will be sagotras then. It will be otherwise in the
case of Sudras or others who, by custom, do not observe gotra
prohibition.

164

MARRIAGE AND SONSHIP

[chap. IV,

says that if there is absence of sapinda relationship in one
direction, there must necessarily be absence of sapinda rela-
tionship in the reverse direction also (f) . This is plainly
right, for this mutuality is implicit in all sapinda relationship,
sapinda being a term of correlation. It is impossible to see
how the last samanodaka, or even one beyond, in one line
of the common ancestor, becomes a sapinda, if a collateral
m the other line is a sapinda of the same ancestoi, or how
one who is not a bhinnagotra or sagotra sapinda
of the common ancestor in one of the branches
can become the bhinnagotra sapinda of anyone in the
other branch where a female intervenes (i^). The Nirnaya
Sindhu and the Dharrnasindhu make another exception con-
trary to the Mitakshaia. According to them, even where
sapinda-relationship is broken in the middle, it continues
afterwards like a f log’s leap, as where it ceases with the
daughters, fifth in descent from the common ancestor Their
sons (or son and daughter) are not sapmdas but the childien
of the latter become sapmdas ( v ) This is best explained
by an illustration.

it) Balambhatti, following earlier commentators like Haiadatta,
commentator of Gautama and Apastamba Dharma^utras, page 194
(Gharpure’s edn). See Prof K V Venkatasubramdniam’H article on
“the compulation of sapinda relationship under Milakshaia law’ in
31 M.L.W. (journal), 9 at page 16

(u) Table
A

51

I

52

I (54 All, 698 at 723) is ba&ed on a misconception,
for, the question whether S5 is a sapinda of S2
on the left depends upon whether S5 is a
I sapinda of A, the common ancestor lie is not
a sapinda of A or even of SI in his own line
S2 IS a sapinda of A but not of S5 For, S5
being beyond five degrees ‘fiom the common
ance&ter is not a sapinda of A, much less of S2
on the left.

SI

S2

53

1

54

S5

S a

1

SI

1

1

Sb

1

S2

1

1

S3

I

D

I

S4

Table II given m 49 Mad., 652, 683 As
regards Table II, though the result staled therein
IS right. It IS based upon Manu’s text (IX, 187)
which has to do only with heritabihty and not
with the computation of sapinda-relationship.
Even without it, there is no sapinda relationship
between S-b and S4

(v) Nirnayasindhu, 216, Dharrnasindhu cited in Mandlik, 3rd table
at page 347. « Sastri Sarkar criticises the *frog-leap’ doctrine ; see
Sarkar, 7th edn., 142.

PARA. 114.]

LIMITS OF BANDHU RELATION.

165

S2

1

S2

1

1

S3

1

S3

1

1

S4

1

1

S4

1

D5

1

1

D5

I

1

S6

1

1

D6

1

D7

1

S7

Here, S6 and D6 can marry, both being
sixth in descent from the common ancestor
through their respective mothers and
therefore not related as sapindas. But
according to Kamalakara and Kasinath,
D7 and S7 cannot marry because D7
claims through her father. In other
words, while S6 is not a sapinda
of the common ancestor, his daughter or
son becomes his sapinda; Balambhatta
rejects this extension of sapinda relation-
ship by frog’s leap , altogether. Dr.
Sarvadhikari while rightly rejecting this theory of sapindas
by frog’s leap undei his Rule I, really applies it under Rule II
stating it as an exception. But he is not altogether satisfied
and, after taking seven degrees, in the line, cuts it down to
six. And in Rulx II he substitutes five degrees for four in
the case of the father’s bandhus (tc). He follows the views
of the Nirnayasindhu and the Dharmasindhu that computation
of seven degrees is not only for sagotra sapindas but also for
bhinnagotia sapindas related through the father, though he
does not give lull effect to their views. They are open to
the objections above-stated, and overlook the clear principle
that, as the line descends step by step, the ascendants drop
out one by one.

To say that the persons in the sixth degree are not sapindas
of an ancestor but those in the seventh are, is to introduce
confusion and to ipipute an absuidity to the iVIitakshara. In

~D

I

I

B—

(m;) Sarvadhikari, 2nd edn., 592, 598-600, and
footnote 601. See also observations of Sulaiman,
J., in Gajadhar Prasad v. Gauri Shankar (1932) 54
All., 698 (F.B.), 716. In the illustration given in
Sarvadhikari, 2nd edn., 600, it is said that D is
a sapinda of P but that F, the father of P is not
a sapinda of D and therefore D is not a heritable
sapinda of P and must be excluded. But if F is
not a sapinda of D, it would follow as an axiom,
that P IS not a sapinda of D and vice versa. This
IS due to the theory of frog's leap sapinda being
brought in again, though said to be omitted. Apart
from any question of being heritable bandhus, both
F and P, being bhinnagotra sapindas of D, the
assumption that D traces his relationship through
P’s father is not correct; he certainly traces his
relationship to P through F’s mother who was the
daughter born in his own family.

166

Marriage awd sonshIp

[chap. IV,

the table in the margin (x)^ S4 from the
moment of his birth upto his begetting a son,
IS not a sapinda of A; but the moment he
begets a son, it is said that his son or himself
and his son become the sapindas of A. A
person who is not a sapinda of a particulai
ancestor of his or of the common ancesloi
cannot transmit a non-existing sapinda relation-
ship with such ancestor to his children. Nor
—SI can the birth of his son confer upon him that

sapinda relationship which ex-hypothesi was
-S5 not originally in him. Similarly if a man

tracing his relationship through his mother is the fifth m
descent from the common ancestoi, the sapinda-relationship
ends with him. But if he begets a son that sapmda-relation-
ship which has ended with him cannot revive and pass to his
son and grandson

To take another illustration According to the view of
the Nirnavasindhu and the Dharmasindhu, in the table in
the margin, while C will not be a sapinda
of A because he claims through his
mother, B will be a sapinda of A because,
he claims through his father Yet in the
line A-B theie are thiee women and three
changes of gotras, though in the line A-C,
there is only one change of gotra (y) . By
what test of propinquity or consanguinity
can a man’s great-grandson’s daughtci's
son who is onlv sixth m* descent from him
be more remote than his daughter’s
daughter's daughter’s great-grandson who
IS seventh in descent from him? On no intelligible principles
can conclusions leading to such anomalous results be
supported

A

D2

S2

D]

1

S3

I I

S4

I I

So D5

C

1

R

{x) See also Battacharya, HL, 2nd edn , 90. With reference to a
similar illustration Mr. P. R. Ganapathi Iyer in an article in 8 MLJ.
(journal), 321-322, says that if a male or a female is not a sapinda
of another, much less can the son of that male or female be the
sapinda of that other.

(y) The exception which is said to allow marriage after a girl is
removed by three gotras even though she is within seven or five degrees
only emphasises the fact that the commentators have different concep-
tions of sapinda relation for different purposes and do not follow the
Mitakshara but the Bengal view, Nirnayasindhu, p 562 (Setlur’s
trans ) *

PARA. 115.]

UMITS OF BANDHU RELATION.

167

§ 115. On the view that the limit of five degrees applies to
all cognates, there is no difficulty in computing degrees of rela-
tionship according to the strict letter of the Mitakshara for
one has to count the degrees from the mother of the father,
grandfather or great grandfather to the common ancestor
and then add the degrees below the female in each case to
ascertain whether a particular person is a bhinnagotia sapinda
within the limit of five degrees or not.

The decision of the Privy Council that the limit of five
degrees clearly applies to bhinnagotra sapindas is not confined
to such as are related through one’s mother. That was a
decision given after a discussion of the whple question and
cannot be regarded as a mere dictum as has been assumed in
some of the cases (a).

Even on the strictest construction of the Mitakshara. its
limitations lefer to sagotrasapindas and to bhinnagotra
sapindas related through the mother. In the absence of any
express rule laid down as to the limitation applicable to
bhinnagotra sapindas through one’s father’s mother or through
one’s grandfather’s mother, by the application of the principle
of analogy recognised by Hindu law, the rule of five degrees
applicable to one set of bhinnagotra sapindas, is more
appropriate to be applied in respect of another set of bhinna-
gotra sapindas. not specifically provided for, rather than the
rule relating to sagotrasapindas between whom and the above-
mentioned bhinnagotra sapindas there is no kind of
similaritv (b) ,

{a) Per Venkatp^ubba Rao, J., in Kesar Singh v. Secy of State
(1926) 49 Mad, 652, 689, 690, per Mukherji, J, in Gajadhar Prasad
V. Gauri Shankar (1932) 54 All., 698 F B.

(6) Kamalakara, who is responsible for the view that there is a
difference in the limitation of bandhu relationship according as it is
through one’s father or through one’s mother, recognises three sort-
of sapinda relationship, namely, with regard to marriage, pollution
and inheritance. Mandhk, 391 note, see also p. 356, Nirnayasmdhu,
Setlur’s trans., 562, e.g., Kamalakara recognises sapindaship of ten
degrees for impurity. Ibid, page 564. He does not follow the rules
of limitation as explained by the Mitakshara for purposes of mariiage,
but follows other views and texts. He cites a passage from a treatise
of one Visvarupa and a text of Narada from Raghunandana of the
Bengal School which refers to bandhus of the father and the mother
and which does not use the term ^sapinda’ at all. As to Visvarupani-
bandha, see Sarvadhikari, 488. This Visvarupa is different from
Visvarupa, the commentator of Yajnavalkya. Kane, 263. The text of
Narada quoted by Raghunandana and Kamalakara is “Girls descended
from the father's or mother’s bandhus are not to be taken in marriage as
far as the seventh and fifth respectively, as well as those of the same
gotra or of equal pravaras"* (Banerjee’s M & S, 5th edn., 67 and
Setlur’s trans., page 561). Dr. Jolly in (S.B.E., Vol. XXXIII), xii, 7,
gives a different reading: “Sagotras and samanapravaras^are ineligible

168

MARRIAGE AND SONSHIP.

[chap. IV,

Prohibited
degreeb in
Bengal
behold

§ 116. On the view that the limitation of five degrees
applies to all bhinnagotra sapindas, the correct rule is: count
inclusive of the common ancestor in the line or lines in which
a female intervenes, five degrees and in the line in which theie
is no female, seven degrees, if the claimant and the piopo-
situs, m then respective lines, are within those degrees, thev
are bandhus of each other; but if either or both of them are
beyond those degrees, they are not bandhus of each other An
equally good woiking rule is begin with the claimant
and the propositus (or the biide and the bridegioom as the
case may be) and count inclusive of both, seven oi five degrees
upwaids according as their relationship with the common
ancestor is in the fathei’s male line or in the line where a
female inteivenes respective!) , and if the common ancestoi is
leached within those degrees on both sides, then they are
sapindas. They are bhinnagotra sapindas if m either or m
both lines a woman inteivenes. Thev are sagotra sapindas if
in neither line, a woman intervenes

117. The rules relating to prohibited degiees ai ( ordmg
to the Davabhaga have been laid down bv Kaghunandana and
aic stated by Sii Gooroodass Banerjee (c) —

Rule I (a) The female descendants as fai as the seventh
degree, from the father and his six ancestors, namelv, pateinal
grandfather, etc .

( b ) The female descendants as far as the fifth degree, from
the maternal grandfather and his four ancestors, namely, the
maternal great-grandfather, etc ,

fur inainagc upto the fifth and seventh degrecb of relationship
respectively, on llie father's and mother’s side” See also Ghose’s,
Vol I, 583 As pointed out by the Privy Council in Ram( handras
case, the earliest cxiiounders appear sometimes to use the teim ‘bandhu’
to signify a sapinda 'without any idea of including cognates
[Ramachandra v I may eh kothekar (]9]d) 41 I A, 290, 305, 306 ]
'Fhe text of Narada used the term ‘fatlier’s bandhus’ to signify agnates
of the father, as Dr. Jolly translates it The Bengal School as
well as Kamaldkara imdeisland the term ‘fathers bandhus’ m
Narada's text as meaning only father’s cognates, (see Banerjee,
M & S, 5th edn , 67) whiih is the technical meaning which it has
acquired since the Mitakshara, ignoring the fact that on that view
the father's agnates would not be covered by the limitation of
seven degrees While the Miiakshara wanted to restiict the degrees
of sapindaship both for purposes of marriage and inheritance, the
views of the Nirnayasindhu and the Dharmasindhu in connection with
marriage are coloured by their desire to extend the prohibited degrees
as much as possible m order to avoid doubts in matters of ceremonial
law See also P. R Ganapathi Iyer’s article in 8 M.L J., 323, Sarkar
Sastri, 7th edn , 91 92.

(c) M & S, 5th edn, 67, quoting Udhvahatatva, II, 65.

PARAS. 1J7 & 118.1

AFFINITY.

169

(c) The female descendants as far as the seventh degree
from the father’s bandhus and their six ancestors, through
whom those females are related and

(d) The female descendants as far as the fifth degree Ironi
the mother’s bandhus and their four ancestors through whom
those females are related,

are not to be taken m marriage.

Rule II. The daughter and the daughter’s daughter of a
stepmother’s brother are not to be taken in marriage.

Exceptions'. (H A girl who is removed by three gotras
liom the bridegroom is not un marriageable, though related
within the seven or five degrees as above described.

(2) When a fit match is not otherwise procurable, the
Kshatriyas in all the forms of marriage and the other classes
in the Asura and other inferior forms of marriage, may marry
within the above degrees provided they do not marry within
the fifth degree on the father’s side and the third degree on the
mother’s.

118. The strictness of the rules as to prohibited degrees
is relaxed as regards Western and Southern India by writers
who recognise the validity of regional or family customs
permitting intermairiages within the forbidden degrees. They
expressly refer to marriages between first cousins, such as that
of a man with the daughter of his mother’s brother or of his
father’s sistei id) Usage permits the union of a man with
his own sister’s daughter Marriage with a niece has, how-
ever, been held by the Bombay High Court to be incestu-
ous (e). The Madras High Court, while admitting that the
rules among Sudfas were not as strict as among Brahmans,
and that instances existed of a man marrying his brother’s
daughter, intimated that such a practice was not warranted by
usage (/). Where the relationship arises from mere affinity,
ds distinguished from consanguinity, a marrigge may be
improper, but is not forbidden, in the sense of being invalid.
For instance, a man may marry the daughter of his wife’s
sister; or his wife’s sistei, niece or aunt; or the sister or niece
of his stepmother; or a paternal uncle’s wife’s sister, or

(d) Mandlik. 103, 413, 416-424, 448, Smntichandnka, Samskara-
kanda (Mysore edn ), 187-200; Parasaramadhaviyam, Vol T. Part IT,
63-69; Nirnayasindhii (Setlur trans., 563).

(e) Ramangavda v. Shivaji cited in Mandhk, 438. But Venkata v.
Subhadra (1884) 7 Mad., 548 at 549, refers to the usage of marrying
sister’s daughter and maternal uncle’s daiightei and cites
Vaidyanathddikshiliyam, page 98.

if) VaithiUnga v. Vijwthamma (1883) 6 Mad., 43, 46.

13

Special

usages

170

MARRIAGE AND SONSHIP.

LcHAP. IV,

Gotra and
pravara.

niece (g). For marriages under the Special Marriage Act,
the prohibited degrees are specially stated in the Act
Itself (h),

§ 119. The rule that a man of a twice-born class cannot
marry a girl of the same gotra or pravara is as well establish-
ed as the rules relating to prohibited degrees (i). The
Mitakshara expressly states that a girl who is a sapinda,
sagotra or samanapravara does not acquire the status of a
wife on marriage and explains that although Kshatriyas and
Vaisyas have neither a gotra nor praiara of their own, yet
the piavara and gotra of their purohit are to be understood (y).
But the rule as- to gotra and pravara does not apply to
Sudras (A). The rules as to prohibited degrees are prima
facie applied but are largely modified by usage. The restric-
tions as to gotra and pravara are respected and practised
among the three higher castes (/). Though an adopted son
passes from the gotra of his father into thilt of his adoptive
father and acquires the full status of a son in the adoptive
family, the prohibitions regarding marriage continue to be
applicable to him as if he still continued in his natural family,
while in the family of his adoption also, he becomes subject
to all the usual prohibitions {m)

The question has arisen whether a Hindu widow, on her
remarriage, can validly marry a person belonging to her
father’s gotra. The Allahabad High Court (n) has held
that she can, on the ground that she retains her husband’s gotra
This appears to be an obvious error According to the relevant

ig) Raghavendra Rao \ Jayaram (1897) 20 Mad, 283.

Ramakrishna v Siibbamma (1920) 43 Mad, 830.

{h) Special Marriage Act (III of 1872), Section 2, 2nd proviso.

(i) Jamadagni, Bharadvyraja, Atri, Visvamitra, Gautama, Vasishtha,
Kasyapa and Agastya are the eight rishis who are the founders of gotras
and the pravaras are the groups of rishis differentiating from the
nshis who are the fouiuJers of the gotras They are 49 in number, see
Parasara Madhaviyam translated in 1 MLJ (journal), 534, 535

(;) See Sri Krishen v Sham Sunder AIR, 1933, Lah , 585, where
a custom of sagotra marriage among Waish Aggarwals was held to
have been made out

(/f) Banerjee, M & S, 5th edn , 62

(/) Ramachandra v Gopal (1908) 32 Bom, 619, 627, Minakshi
V. Ramanadha (1888) 11 Mad, 49, 51, FB.; Santappayya v Rangap-
payya (1895) 18 Mad., 397.

(m) Dat Mima, VI, 10, 32, 38, 39, Dat. Chand., IV, 8 9, Sarkar
Sastri, Adoption, 2nd edn , 387 In the family of his adoption, his
sapinda relationship extends only to three degrees. See post §§ 187, 194.

(n) Radhqnath Maker ji v. Shaktipado Maker n (1936) 58 All.,
1053,

PARAS. 119 & 120.]

MARRIAGE RITES.

171

text of Yajnavalkya, the bride must not be descended from
one whose gotra and pravara are the same as the bride-
groom’s. The Sanskrit expression (/i') makes it conclusive
that it is the gotra of a woman’s birth that counts in marriage.

When a woman enters into her husband’s gotra on her
marriage, the gotra-consanguinity is constructive and not
physical (n^). She retains the husband’s gotra only in her
character as ‘wife’, during her widowhood, and she cannot
retain it for purposes of remarriage. When she is given in
marriage, the formula requires that she should be given as
the daughter of say, Dcvadatta, belonging to Bharadwaja gotra.

The legislature has expressly recognised that a minor widow
reverts to her father’s family for purposes of guardianship in
remarriage (o). For the same reason, she could, under the
ancient Hindu law, as she can now, wheie theie is a custom,
marry her husband’s brother; it is also the explanation for
the Niyoga, for a husband’s brother or agnate being authorised
to raise up issue. Accordingly, a Hindu widow can marry
a person belonging to her husband’s gotra. Similarly, the
prohibited degrees applicable to the case of a re-marrying
widow are the prohibited degrees based on her sapinda rela-
tion in the family of her birth and not those applicable to a
girl born in her husband’s family.

§ 120. The status of husband and wife is constituted by Marriage
the performance of the mariiage rites, whether prescribed by Ceremonies,
the Sastras or by custom. The Sastraic rites observed by
the first three castes can be and are ordinarily observed
by the fourth caste also, either with or without mantras (p).

The Asvalayana * Grihyasutra recognises that the customs of
different countries and of villages should be observed at
weddings though it gives the common form of marriage

(n}) ^Asamanarshagotrajam* Yajn., I, 53; Mandlik, 168. Manu, III,
5 IS to the same effect.

(n2) Lallubhai v. Cassibai (1881) 7 I.A., 212, 234; 5 Bom., 110,
121 (constructive consanguinity) ; see also Bhattacharya, H.L., 2nd
edn., 96-97.

(o) Hindu Widows’ Remarriage Act (XV of 1856), Section 7.

ip) Kameswara Sastri v. Veeracharlu (1911) 34 Mad., 422, 427,
Authikesavalu v. S, Ramanujam (1909) 32 Mad., 512 (case of sudras) ,
Maharaja of Kolhapur v. Siindaram Iyer (1925) 48 Mad, 1, Medhatithi
(Jha, Vol. IV, 274) commenting on Manu, VIII, 227, says that in the
case of Sudras, barring the mantras, all the rest of the procedure is
the same. The performance of homara may be done through a Brahmin.
Vyavahara Mayukha, IV, 5, 12-14; Banerjee, M & S, 5lli edn., 107.

172

Marriage and bONsHlp

[chap. IV,

rites (<7). The performance of the homam, the panigrahana
or taking hold of the bride’s hand and going round the fire
with Vedic mantras, the treading on the stone, and the
seven steps or Saptapadi — these are the more important rites
mentioned by it. The marriage becomes complete and
irrevocable on the completion of the Saptapadi or ceremony
of seven steps (r) and from that moment, the wife passes into
her husband’s gotra (s). Where a Hindu community doe*-
not recognise the homam or Saptapadi as essential, their
omission will not render the marriage invalid (M If it is
shown that by the custom of the caste, or district, any othei
form IS considered as constituting a marriage, then the
adoption of that form, with the intention of therebv complet-
ing the mairiage union, is sufficient (u)

In some communities. theie is a custom that,
after the actual marriage has taken place, a further
ceremony must be perfoimed before cohabitation, and
if the man who has gone through the first cere-
mony declines to perfoim the second, the girl may lawfully
marry again (t;) In Bombay, a custom was proved, and held
valid, that mere babies should be married with all religious
ceremonies, but that the niariiage should not be treated as
ellectual, unless certain conditions agieed on at the time weie
performed on either side iw) But the legal result of such
d custom would appeal to be that there is no binding and

iq) A&valayana Gnhybulra, 1, 7, 3-22 ( Rigvedmss ) , Apastamba

Grihysutra, Sections IV, V, VI, VIll (Yajurvedin's) , Sir G Banerjee
gives the foims prescribed for ihe Samavedin«i fM & S, 5th edn ,
101-107) The forms are more or less similar

(r) Manu, VllI, 227, Venkalacharyulu v Rangachary ulii (1891) 14
Mad, 316, 3l9, Chunilal v Surajram (1909) 33 Bom, 433, 438, Appibai
V. Khimji (1936) 60 Bom, 455, Bulli 4ppanna v Subamal AIR, 1938,
Rang. Ill

(5) According to the text cited in the Smriti Chandrika (Samskara
Kanda, 184-5, Mysore edn.) and the Parasara Madhaviyam Ltrans. 1,
M L.J (reprint), 465 J, a woman becomes one with her husband in
pinda, gotra and sutaka (pollution) and on marriage, she loses her
father’s gotra on the seventh step, Samskara Mayukha, Gharpiire’s edn.,
52; Ghose, Vol. I, 789

(f) Authikebavalu \ Ramanuja (1909) 32 Mad., 512, Muthusami
Mudaliar v MasiLamam (1910) 33 Mad, 342, 348, Rampiyar v. Deva
Rama (1923) 1 Rang, 129.

iu) Manu, III, 35, see futwah, 2 M. Dig, 45, Gatha Ram v Moohito
Kochin (1875) 14 BLR, 298, 23 W R , 179, Kallychurn v Dukhee
(1880) 5 Cal, 692 Mandlik, 404, Hurry Churn v Nimai Chand (1884)
10 Cal , 138.

iv) Boolchand i Janokee 25 ^.R., 386

(u/) Bai l^n V Patel Purshottarn (1893) 17 Bom., 400

PAHAS 120 & 121 .] FACTUM VALET.

173

complete marriage until after the second ceremony, or the
performance of the condition precedent. In the absence of
any such custom, the marriage is complete, though not
followed by consummation and even though, in consequence of
the conversion to Christianity of one party, the other
renounces the obligations of marriage (^).

In a case in Calcutta, it was held that a marriage, amongst a
community called Jativaishnabs, by exchange of garlands
called the Kantibadal ceremony, was, according to custom,
valid (y). In a Madras case, where a Kumbla Zemindar mar-
ried, in the dagger form, a woman of an inferior class, though
of the same main caste, with all the customary, rites, it was held
that the marriage in dagger form was valid but only denoted a
wife of inferior rank (z). In Phoolbiha marriages, the
wives are only of inferior status (a). In another Madras
case, It was held that the sword marriage was not a valid
marriage amongsfc Sudras and that sword wives are only
permanently kept concubines (6) . In a case from the
Central Provinces, a Katar marriage or marriage to the bride-
groom’s sword or dagger was held by the Privy Council not
to be a valid marriage (cl.

S 121. The doctrine of factum valet, rightly interpreted,
is particularly applicable in connection with questions
relating to marriage and adoption. The general principles
are stated in several cases (d). The application of the
maxim must be limited to cases where there is neither want
of authority to give or to accept nor any imperative interdic-
tion; or where there is no force oi fraud. Where a marriage
has taken place m, violation of a previous agreement to marry
another person (e) or without the consent of the person whose

{x) Administrator -General v. Anandachari (1886) 9 Mad., 466;
Dadaji Bhikaji v. Rukmabai (1886) 10 Bom., 301 at 311.

(y) Benodebehary v. Shashi Bhussan (1919) 24 •C.W.N., 958;
Banerjee, M & S, 5th edn., 297

(z) Ramasami Kamaya Naik v Sundaralingasami (1894) 17 Mad.,

m

(a) Banerjee, M & S, 5th edn., 279

• 6) Maharaja of Kolhapur v. Sundaram (1925 ) 48 Mad., 1.

(c) Ramsaransingh v. Mahabir (1933) 61 I.A., 106; A.I.R., 1934,
P.C., 74.

id) Lakshrnappa v. Raniava (1875) 12 Bom. H.C., 364, Gopal Narhar
V. Hanmant Ganesh (1879) 3 Bom., 273; Mulchand v. Bhudia (1898) 22
Bom., 812, Balusu Gurulingasami v. Ramalakshmamma (1899) 26 I. A.,
113; 22 Mad., 398; Kunwar Basant Singh v. Kunwar Brijraj (1935) 62
I.A., 180, 195 ; 57 AIL, 494, 509. Kshiteesh Chandra v. Emperor [1937!
2 Cal., 221 F.B., bee ante §21; post § 186.

(e) Khooshal v. Bhugwan Motee 1 Bor., 138 (155)

Factum

Valet.

174

MARRIAGE AND SONSHIP.

[chap. IV,

consent ought to have been obtained (/) , it will be legal
and binding. Where the rule is directory and not mandatory,
its infringement will not make the marriage or adoption
invalid. The breach may be of a mere moral or ceremonial
precept; or it may be the breach of a legal rule which falls
short of being an imperative rule of law, as for instance,
the rule conferring preferential rights of guardianship in
marriage, capable of being enforced by injunction or order of
Court, before the marriage takes place. The Child Marriage
Restraint Act furnishes another illustration, where though the
persons responsible for the marriage are punished, the validity
of the marriage itself, when once performed, is unaffected (g) .
Under the Hindu Widows’ Remarriage Act (XV of 1856)
however, marriages of minor virgin widows made without the
consent of the persons mentioned in the Act will be held to
be void, except where consummation has taken place (s. 7).

Presumption
of valid
marriage

§ 122. When the fact of the celebratioin of a marriage is
established, it will be presumed, in the absence of evidence
to the contrary, that all the forms and ceremonies necessary
to constitute a valid marriage have been gone through (h)
So also where a man and woman have been proved to have
lived together as man and wife, the law will presume, until the
contrary be clearly proved that they were living together in
consequence of a valid marriage and not in a state of
concubinage (i).

(/) Baee Rulyat v Jeychandy Bellasis, 43, Gajjanand v The Crown
(1921) 2 Lah., 288; Ram Harakh v. Jagarnath (1931) 53 All., 815.

(g) Munshi Ram v Emperor A.I.R., 1936, All, 11, Moti v. Bern
A.I.R., 1936, All., 852 Semble, even after injunction.

{h) Inderun Valungypooly v Rarnaswanu (1869) 13 M I.A , 141 at
158, Ramamani v Kulandai (1871) 14 M I.A , 346, 365, 366; Brindabun
Chundra v. Chundra Kurmokar (1886) 12 Cal, 140. Moujilal v.

ChandrabatL Kumari (1911) 38 I A , 122, 38 Cal., 700; Bai Diwali v,
Moti Karson (1898) 22 Bom., 509.

(z) Sastry Velaider v. Sembicutty (1881) 6 AC, 364 (a case of
South Indians in Ceylon) following De Thoren v Attorney-General
(1876) 1, A.C., 686 and Piers v. Piers L.R., 2 H L.C., 331; Moujilal v.
Chandrabati Kumari (1911) 38 I A , 122, 38 Cal, 700 (extremely strong
presumption in favour of marriage) , A Dinohamy v. W, L. Balahamy
A.I.R , 1927, P.C, 185 (Ceylonese case, following 6 A.C., 364); Inder
Singh V. Thakiir Singh (1921) 2 Lah, 2()7, 216 (Sudras — no presumption
where original connection was known to be illicit) . But where the
parties are at liberty to intermarry, a connection commencing in adultery
may, on ceasing to be adulterous, be presumed to be matrimonial evidence
of habit and repute. Campbell v. Campbell L.R , 1, H L. (Sc & D ),
182; as to the presumption where repute is divided, see Lyle v Ellwood
L.R , 19. Equity, 98 Re, Haynes, Haynes v. Carter 94 L T., 431. The
presumption is less strong where there is no issue and the invalidity of
the marriage is alleged by the parties; 16 Hals, 2nd edn , 599, note (r)
The case m Ma Wun Di v. Ma Kin (1907) 35 I.A., 41; 35\,Cal., 232,
related to hfrbit and repute amongst Burmese and stands on its own

PARA. 123.]

INTERCASTE MARRIAGES.

175

§ 123. By the time of the Yajurveda, the caste system had Intercaste
become more rigid and marriages between the castes, though
still allowed had come to possess differentiating features.

Even before the period of the Dharmasutras (c. 600-300
B.C.), inter-marriages between the four varnas or castes on a
footing of equality, were not allowed. For pratiloma
marriages, that is, marriages between a woman of a superior
caste and a man of an inferior caste were altogether forbidden
and no rites were prescribed for them in the Grihyasutras. The
issue of such unions were declared to be outside the pale of
the sacred law (;) . The Arthasastra of Kautilya also regard-
ed pratiloma sons as sons born of unlawful union (k).

Anuloma marriages or marriages between a male of a superior
caste and a woman of an inferior caste were allowed but
limited by discriminatory rules (Z). The Panigrahana rite
or the ceremony of joining hands was allowed only for
marriages with women of equal class, but when the marriage
was with a woman of an inferior class, the bridegroom’s
arrow or goad or the hem of his garment was, in that order,
substituted for the bridegroom’s hand in the case of the
Kshatriya, Vaisya and Sudra brides (m). The wedding with
a Sudra wife was to be without mantras (n). The issue of the
marriage with a woman of the inferior caste had neither the
caste of the father nor the status of his savarna aurasa
son (o).

The marriage of a Dvija and in particular, of a
Brahmin or a Kshatriya with a Sudra bride was prohibited
by Gautama, Apastamba and Vasishtha (p) . Manu, after
referring to the view that anuloma wives are permitted,

(III, 13) and explaining that, even in ancient tradition,

facts. It can have no general application under Hindu law where
there is a sharp distinction between legitimacy and illegitimacy and
between wives and concubines and there is the religious duty of offering
pindas. Where, however in particular families, there is no clear distinc-
tion between marriage and concubinage, the presumption cannot easily
be applied or it is easily rebutted. Maharaja of Kolhapur v. Sundaram
Iyer (1925) 4S Mad., 1, 44.

(/) Gaut., IV, 25, 27, 28, Manu, X, 24, 29, 30, 31, 67, Yajn , 1,
93-95; Nar., XII, 109-113; Daya Bhaga, IX, Viramitrodaya (Setliir
trans.), 409-410.

(k) Arthas., Shamasastri, 203.

(/) Baudh., I, 8, 16, 2-6; Vas., I, 24; Manu, III, 13; Yajn., I, 57,
Vedic Index, I, 476.

(m) Manu, III, 43, 44; Vishnu, XXIV, 5-8.

(n) Paraskara Grihya, I, 4, 11; S.B.E., Vol. 29, p. 277; Vas., I, 25.

(o) Except perhaps in the case of a son born to a Kshatriya wife,
see Baudh., I, 8, 16, 6.

ip) Gaut., IV, 26; Apas., II, 6, 13. 4-5; Vas., I, 25, *26

176

MAKRIAGL AND SONSHIP.

[chap. IV,

a Sudra woman was not the first wife of a Brahmin or a
Kshatriya, though they could not get savarna wives (III, 14),
concludes by prohibiting it altogether (III, 15-19). Yajna-
valkya after stating the opposite view, rejects such a marriage
even more unmistakably (I. 56) and omits the Sudra wife
altogether in the case of the Brahmin. Kshatriya and
Vaisya (^1. He provides only the rites for Kshatriya and
Vaisya brides m anulorna marriages, leaving out the rites for
the Sudra bride (I, 62) and omits the son of a Brahmin by a
Sudra wife from Manu’s list of sons (II. 128-1321 Vishnu
and Narada allow anulorna marriages while the latter advises
that marriages are best made in one’s own caste (r)

When there were sons born to wives of different castes, out
of ten shares, the sons of such wives were entitled to foui
shares or three, two or one respectively in the order of
castes {sj. The son of a Brahmin by his Sudra wife (Nishada
or Parasava) was not heir to his father’s kinsmen but was onh
entitled to a tenth share of his father’s estate even in the
absence of preferable sons as against the sapinda of his
father and he was disentitled to any share in his landed
estate (0* He was entitled, according to Kautilya and
Devala to one-third share, and according to Vishnu to one-half
share, the other heirs of the Brahmin taking the remainder (u)
According to Gautama he was entitled only to a provision
foi maintenance (v) Sons born of mairiages, between
women of superior castes and men of inferior castes (pratilo-
rnajas) were placed on the same footing as sons of a Brahmin
bv his Sudra wife iw)

Kq) “The taking of a Sudra wife by the twice-boin is indeed
ordained by some but it is not agreeable to my views, because from
her he is himself born.” “Three, two, or one wife to the Brahmanas,
Kshatriyas, and Vaisyas is laid down according to the priority of
classes, and respectively, t e , to a Brahmana, a Brahmana, Kshatriya
and Vaisya wives and so on, to the budra is a wife born in the same
class.’ Yajn, I, 56, 57 Mandlik, 168.

(r) Vishnu, XXIV, 1-8. Nar . XII, 4-6

(s) Manu, IX, 152-155, \ajn, II, 125, Baudh , II, 2, 3, 10, Vishnu,
XVIII, 1-27, Brih , XXV, 27-29, different rules are given by Vasishtha,
XVII, 47-49, as for Gaiit., see XXVIII, 35-39 The son of a Brahmin
by his Sudra wife took one-tenth, the son of a Kshatriya by his Sudra
wife took one-sixth, the Min of a Vaisya by his Sudra wife took
one-third.

it) Manu, IX, 154, Brih XXV. ,32. Mit I XI, 4142, Mavukha.
IV. 4, 28. Mit. I, XI, 30-31

(m) Shamasdstri, 201, Dige«4| II. 320. Vishnu XVIll, 32

iv) Gaut., XXVIII, 39.

{w) Gaut., XXVIll, 45, Mayukhu, I\. 4, 31, Vivadaratnakara,
XIII. 28. o

PARA. 124.]

INTERCASTE MARRIAGES.

177

§ 124. The rules in the ancient law books regarding mar-
riages between persons of different castes have long ago become
obsolete {x) . Visvarupa, the earliest commentator on Obsolete.
Yajnavalkya commenting upon Yajn. I, 56 states that the
marriage of a Sudra girl by a twice born is prohibited (y) .

In his gloss on Yajn. II, 125 he reiterates that no son by a
Sudra wife is sanctioned for the twiceborn (z). The Smriti-
chandrika also prohibits intercaste marriages: ‘'Even a son
of the body does not become a legitimate son when he is
born of a wife of an unequal class, the marriage of a woman
of unequal caste, being itself prohibited in the Kali age” (o) .

The Parasara Madhviyam after quoting the conflicting texts
on the question of marriage of persons of different castes,
says, “Distinguishing the different ages, the law is clearly
established by a Smriti, which referring to the marriage
of persons of any of the twice-born castes with persons
of other castes, declares “The learned say that these
practices must not be followed in the age of Kali” (6) .

So also Raghunandana in his Uddhvahatatva (c) and Sri
Krishna Tarkalankara in his Dayakramasangraha (d) . Kama-
lakara in his Nirnayasindhu says: “The marriage of a dvija
with a maiden of a dissimilar class is prohibited in the Kali
age” (e) . Jagannatha cites two texts from the Brihan-Naradiya

ix) Mulluhwami Iyer, J., says, that the pratiloma marriage was a
prohibited connection [Ramaswami Kamayya Naik v. Sundarahngaswami
(1894) 17 Mad, 422, 435 J. Coutts-Trotter, J., in Pudiava v. Pavanasa
[(1922) 45 Mad, 949, 971, 972 F.B.l, says that there is a consensus
of opinion that intermarriages between persons of different castes have
in practice long ceased to exist. Colebrooke’s trans. of the Mitakshara,

I, VIII, 2, “under thf^ sanction of law, instances do occur,” is erroneous.
It should only read “by the text beginning with Tisro Varnanu
Purvyena** (Yajn., 1, 57), for a Brahmin 4 wives, for a Kshatriya 3
wives, for a Vaisya two wives and for a Sudra one wife, have been
shown.”

(y) Visvarupa’s Balakrida, 65 (Trivandrum edn.).

{z) Visvarupa’s Balakiida, 247; the verse is there numbered as

II, 129

(a) Devannabhatta further says “we have not therefore detailed the
laws relating to partition of property amongst sons of unequal classes;
as it would tend in vain to swell the work, such a partition being in
the present age obsolete”; Smriti Chandrika (Krishnaswami Iyer's
trans.), p. 142, X, 7 (Mysore edn.) Vyavaharakanda, 669.

{b) Parasara Madhaviyam, Vol. I, Part II, 97-98 (Bom. edn.) ; also
cited by Chandavarkar, J., m 14 Bom. L.R., 547, 552, 553.

(c) Uddhavahatattva, II, 62.

(d) D.K S., I., 2, 7: “The marriage with a woman of unequal class
is prohibited in the Kali or iron age.”

(e) Nirnayasindhu, 275 (Nirnayasagar edn.). See Mandlik, note
at page 218 on Yajn., II, 125.

14

178

MARRIAGE AND SONSHIP.

[chap. IV,

Inter-caste

marriages

invalid

and the Adityapurana to the same effect (/) . The rules per-
mitting a Brahmin to have a son by a Sudra wife (Nishada
or Parasava) as well as other secondary sons have been clearly
stated to be obsolete both in the Sanskrit works, and by modern
writers (g). When Hindu writers say that certain practices
have become prohibited in the Kali age, they do not merely
mean that the ancient practices are now prohibited and are
therefore no longer law. The prohibition was due to a new
consciousness and wide disapproval, to a new usage, disconti-
nuing or dbiogating the old usage.

§ 125. Marriages between persons belonging to different
castes are therefoie invalid in the absence of a usage to the
contrary (/i) . In a number of cases, marriages between
persons of diffeient castes were held to be prohibited without
distinguishing between anulorna and pratiloma marriages (i).
Of course, mariiages between persons belonging to different
divisions of the same main caste are perfectlv valid (/) All
the cases dealing with the marriages between sub-divisions of
the same caste proceed upon the view, sometimes expressed

(/) Digest, II, 324

(g) Bn, XXI\ . 13, 11, Apararka, irans 21 M.LJ (journal), 305;
Smnti Chandrika, X, 5, 6. Parasara Madhaviyam, Vol , I, Part II, 97,
98 (betliir trails, 332) , Subodhini, 710 (Sellur’s edn ) , Nirnayasmdhu,
195, V Mayukha, IV, 4, 46 (Gharpure's trans , 65). See also note
(/?) infra

(h) Strange, HLI, 39-40, Steele, 26, 29, 30, Bhattacharya HL,
2nd edn, 85, Vyav (chandrika, 11, 4.54, Vyav Darpana, 1, 173,
Banerjee , M & S, 5th edn, 7682, Trevelyan II L (111 edn ), 41, J C
Chose, I. 791-2. 809-810 The general observation in Melararn v.
Thanooram (1868) 9 WR, 552 (Dome Brahmin and Haree girl) and
m Narain Dhara v Rakhal (1878) 1 Cal, 1, 4 was sound enough,
though Its application to marriages between subcastes of the ',ame
mam caste was wrong

(/) Lakshmi v Kalian Singh (1900) 2 Bom, LR, 128 (Kshatriya
and Brahmin woman), Miinnilal v Shiania (1926) 48 All, 670 (Sudra
ami Vai&ya woman), Seitpun v Dwaraka Prasad (1912) 10 ALJ,

151 (Thakur and a Brahmin woman) , Padani Kiimari v Sura] Kumari
(1906) 28 All, 458 (Biahmin and Chhattn woman).

(/) Inderun Valungypooli \ Ramasinarny (1869) 13 MIA, 111,

athrming 1 M H R , 478, Ramaniani v Kulandai (1870) 14 MIA,
346, Copekrishna v Mt Jaggo (1936) 63 lA, 295, 58 All, 397,
Upoina Ko( ham \ Bholaram (1888) 15 Cal, 708, Fakirgauda v.

Cangi (1898) 22 Bom, 277. Mahantava v Gangava (1909) 33 Bom,
693, Mnthuswarni v Masilaniam (1910) 33 Mad, 342, Harprasad v.
Kewal (1925) 47 All, 169, Sohan Singh v Kahla Singh (1929) 10
Lah , 372, Btswanath Das v Shorasibala (1922) 49 Cal , 926, 936, 954,
Rajaninath Das \ Nitaychunder (1921) 48 Cal, 643, 714, f B ,
ISalinaksha \ Rajanikanta Das (1931) 58 Cal, 1392, Appibai v

Khirnji (1936) 60 Bom, 455, 462, Siiram Chand v Indar AIR,
1934, Lah., 550 Ratanchand v. Anandbai AIR, 1933, Sind. 93
(between Aryas^amajint and a Brahmo) Kshiteesh Chandra v Emperor
1 19371 2 Cal, 221 FB

PARAS. 125 & 126.] INTERCASTE MARRIAGES.

179

but almost always implied, that marriages between persons of
two different castes are invalid under Hindu law (A;). In a
Bombay case, Chandavarkar, J., after a review of the texts, says
that “according to the leading authorities on Hindu law as
recognised in this Presidency, a Sudra wife is not permitted
to a Brahmin, a Kshatriya, or a Vaishya” (/) . The case itself
was one where a Brahmin woman had married a Sudra and
even in Bombay it is settled that pratiloma marriages are
invalid im) . But the Special Marriage Act as amended by
the Act of 1923, enables persons belonging to different castes
validly to marry, even when they declare themselves to be
professing Hindus. It no doubt requires a civil marriage
but does not prevent a religious ceremony being added to it.

It gives the wife and the offspring full status and full rights.

The Special Marriage Act does not, of course, affect the
\alidity of any marriage not solemnised under its provisions.

No doubt, as observed by the Judicial Committee, in their
recent judgment*(n) , there is at present a tendency to ignore
caste distin(;tions in the matter of marriage (o) .

§ 126. The Bombay High Court, however, has in two Bombay view
cases held that, according to the Hindu law as administered discussed,
in the Bombay Presidency, anuloma marriages between mem-
bers belonging to two different castes are valid. In Bai Gulab v.

Jiwanlal (p), a marriage between a Vaisya and a woman who
was assumed to be a Sudra was held to be valid. In Natha
v. Mehta Chotalal (q), it was held that the marriage between
a Brahmin and a Sudra woman was valid and the son born

(k) “The rule of Hindu law is that you must marry within your
own caste” per SiriShadi Lai in Gope Krishna v. Mt, Jaggo (1936) 63

I. A., 295, 298 ; 58 All , 397 , Inderun Valungypooly v. Ramaswamy
(1869) 13 MIA, 141, 158; Ram Lai Shookool v. Akhoy Charan (1903)
7 C.W.N, 619, 633, Balraj Singh v. Jai Karan Singh A.I.R., 1931, All.,
407,410.

(/) Bhai Kashi v Jamnadas (1912) 14 Bom., L.R., 547, 552;
evidently the dictum of Chandavarkar, J., is misunderstood by Venkala-
siibba Rao, I, for he says in Morarji v. Administrator-General (1929)
52 Mad , 160, 173, that “Chandavarkar, J , in Bhai Kashi v Jamnadas^
after an examination of the Smritis and the commentaries also arrives
at the conclusion that anuloma marriages are valid”; see per Shah,

J. , in 46 Bom , 871, 885.

(m) Lakshmi v. Kalian Singh (1900) 2 Bom. L.R , 128, Bai
Gulab v. Jiivanlal (1922) 46 Bom., 871; Natha Nathurani v. Mehto
Chotalal (1931) 55 Bom., I.

(n) Gopee Krishna v Mt. Jaggo (1936) 63 I.A., 295, 58 All., 397.

(o) Apart from custom, most intermarriages between ihe piincipdl
castes that are now taking place are, it is believed, celebrated under
the Special Marriage Act.

(p) (1922) 46 Bom, 871
(a) (1931) 55 Bom, I

180

MARRIAGE AND SONSHIP,

[chap. IV,

ojf that union was entitled to succeed to his father’s brother’s
estate for *a tenth share. The ground of decision in both
cases is that the texts of Manu and Yajnavalkya as inter-
preted by the Mitakshara are only directory and do not
prohibit such marriages and that, from the fact that the
marriages are obsolete, no prohibition follows. The Court
therefore applying the ancient rules on the subject holds
that the son born of an anuloma union has not the same
status as a son born of a wife of equal class but is only entitled
to one-tenth share even when his father leaves no other son.
It is evidently considered that there is something peculiar
in the law as administered in the Bombay province which
justifies the view. The question howevei is of general
importance and nothing turns on any peculiarity of the Maha-
rashtra school on this point. The view of the Bombay High
Court in the two cases above referred to is opposed not onlv
to Chandavarkar, J.’s considered dictum but also to the doctrine
generally leceived in all the Schools till nbw, namely, that
marriages between the different castes, as distinguished from
marriages between sub-di visions of one and the same principal
caste are invalid in the absence of a contrary usage

§ 127. The inconveniences resulting from the view taken
by the Bombay High Court are obvious. It revives an archaic
set of rules wholly unsuited to modern conditions, for it
introduces into the general law the doctrine of inferior
wives and secondaiv sons, the creation of new intermediate
castes and the intensification of existing differences by the
addition of new inequalities. The actual decision in Natha
v. Mehta Chotalal (r) is itself contrary to the very rules which
it invokes. In the first place, according tc the Mitakshara,
a Brahmin’s son by his Sudra wife is not an heir to his father’s
brother (5) . In the second place, a son by a Sudra wife is not
entitled to the landed estate of his father or uncle, for while
land obtained by gift cannot go to a son of the Kshatriya or
Vaisya wife, no landed estate whatever can go to the son of a
Sudra wife (0 .

The reasons given by the Bombay High Court
do not appear to be valid. The prohibition by Manu
seems to be express and fairly clear. The Smritis also, like
the much later commentaries on them, sometimes state one

(r) (1931) 55 Bom., I.

(s) Manu, IX, 159, 160; Mit., I, xi, 30-32, his existence would not
prevent adoption ; Apararka cited in Jha, H L S , II, 233 ; also translated
in 21 M.L.J. (journal), 254-255, 305.

(t) 55 Boil. , I, 19 overlooks Bnhaspati, XXV, 32 and Mit , I, viii, 9.

PARA. 127.]

INTERCASTE MARRIAGES.

181

view, then state the reasons against it and conclude with their
own views (u ) . Manu III, 14 states only one reason against
the view presented in III, 13. Medhatithi’s comment on
III, 14 does not appear to recognise an option as stated by
Shah, J. and Patkar, J. (v). His conclusion, to state it in
his own words, is: “Since the rule is not absolute, it follows
that in times of difficulty or in the event of not finding a
girl of his own caste, while the Sudra girl shall never be
married, those of the other two castes may be married” {w).
The purport of Kulluka’s comment appears to have been
misconceived. He does not say that the prohibition in III, 14
refers to pratiloma marriages in the ordinary sense, for the
prohibition in verse 14 itself refers to an anuloma marriage.
What Kulluka says is that the prohibition in verse 14 refers
to marrying a Sudra wife in the wrong order, that is, before
a Brahmin, Kshatriya or Vaisya wife {x ) . This rule would
mean that for a Brahmin to marry a Sudra wife, he should
first have marrieS a Brahmin wife also. But, the real prohi-
bition in Manu is contained not in verse III, 14 but in verses
III, 15-19 and in verse IX, 178 (y).

The text of Yajnavalkya (I, 57) is mandatory and contains
a clear prjohibition ( 2 ). The comment in the Mitakshara
which is relied on by the Bombay High Court in the two later
cases has been understood by Chandavarkar, J. in the opposite
sense (a) . The Mitakshara apparently considers that a Sudra
wife may be taken for inferior purposes, as an irregular or

(u) This will explain the apparent contradiction between one set
of passages and another set of passages occurring in the same Smriti
as for instance, in the case of the Kshetraja son. Omission to
recognise this feature has been responsible for much misconception in
some matters.

(v) Shah, J , in 46 Bom., 871, 879; Patkar, J., in 55 Bom., I, 5.

iw) Jha’s trans. of Manu with Medhatithi’s Bhashya, Vol. II, Part

I, 40.

{x) Dr. Buhler’s translation of III, 14, appears to be right. So it
is understood by Nandana, another commentator of Manu. See Apas.

II, 7, 17, 21; S.B.E., Vol. II, 145.

(y) See Kulluka’s gloss on Manu, IX, 178.

iz) Mr. Mandlik says “Manu mentions a Sudra wife as allowable;
himself condemns such a union further on. Vasishtha speaks of it as
being mentioned by one acharya but condemns it distinctly. Yajna-
valkya pronouncedly follows them in discarding it altogether.” Mandlik,
168.

(a) Bhai Kashi v. Jamnadas (1912) 14 Bom. L.R ? 547, 552.

182

M\RRIAGE AND SONSHIP,

[chap. IV,

morganatic wife (6L and that, by a person who has married a
wife of equal class and has got a son or has lost her. It
nowhere permits a dvija to take her as a first or only wife.
But the crucial texts in the Mitakshara are decisive against
such inter-marnages between a dvija and a Sudra woman; for
it defines an aurasa or legitimate son as one begotten by a
man of a woman of the same caste, lawfully wedded b\
him (c). A Sudia wife of a Brahmin cannot be his palm and
heir according to the Mitakshara for the term means “a woman
espoused in lawful wedlock, implying thereby a connection
with leligious rites” (d). Since his mother is not a patni,
Manu and the Mitakshara following him call the son born
to her as only a substitute for a son (d^). The conclusion
of the Mitakshara on this matter is stated in I, 11, 1^3 (d^)
which finally excludes him from inheritance The Bombay
High Court says that Nilakaiitha does not express his opinion
on the Sudra wife’s son's right of inheritance (e) , the reason
IS obvious: he did not recognise him as an aurasa son and a
secondary son is forbidden (e^)

Whatever may be the correct interpretation of the Mitak-
shara on the point, marriages between members of different

(6) Vijnanesvara’'' comment on \ajn., I, 56, is (Vidyar Iran. 120)
“Yajnavalkyd prohibits a Sudra wife for one desirous of begetting a
naityaha (necessary) son But in the case of not being able to produce
a naityaka son, in producing an optional son, for a Brahmin, a
Kshatriya and a Vaisya woman, and for a Kshatriya, a Vaisya woman,
are allowed " This on the face of it is a prohihiti m of a marriage
with a Sudra woman His comment on Yajn , 1, 57, explains why
the son of a Sudra woman was referred to later and it seems to
suggest that it is not a perfectly legitimate wedlock The reading in
Setlur’s edition (page 38) makes it clear that it is *d prohibition under
all circumstances The Madanaparijata treats the verse in Yain as
a clear prohibition (Cal edn , 145) And the expression Nantanyaka-
sayotpannasya means ‘does not refer to twice-born in lawful wedlock”
(Vidyarnava’s trans , page 122), or “one begotten in an inferior mod^* *
11 M L J (journal), 1501. Balambhatta also understands the Mitak-
shara as prohilviing the marriage of a Sudra woman by a Brahmin
The expression *Vinna in Yajn , I, 92, can only refer to marriage m
fact and does not touch on the question of its validity which is dealt
with earlier in 1, 56 57, and later in the Vyavaharakanda
(c) Mit , 1. XI, 12
{d) Mit , 11, 1, 5

(t/l) According to the Mitakshara, sapinda relationship extends only
to three degrees amongst anulomaja sons

(cf^) Mit , I, XI, 1-3 “Hence it appears that the son of a Kshatriya

or Vaisya wife takes the whole of the property, on failure of issue by

woman of equal class ”

(e) (1931) 55 Bom, I, 19

(e^) Nilakantha says “there is no acceptance as sons of others than

the dattaka or an aurasa. for they are forbidden in the Kali age.”

V. Mayukha, >V, 4, 42, 46 (Gharpure's trans., 64-65).

PARAS. 127-129.]

POLYGAMY.

183

castes have been prohibited and discontinued by the usage
of the community for such a length of time that the only legal
course is to treat them as invalid, except where there is a
custom or enactment to the contrary.

§ 128. The view that it is enough that a caste accepts a Opinion of
marriage as valid appears to be very doubtful (/). In caste,
the first place it is not a caste matter within the jurisdiction
of the caste. The validity of a marriage cannot be deter-
mined solely with reference to the position which the caste
people may take up with regard to it. It can be decided
only with reference to the provisions of law, subject of
course to the proof of any special usage having the force of
law (g). In the second place, absence of objection by the
caste to a marriage is hardly a test; for the only legal and
effective way of ascertaining the approval of the caste is
by ascertaining vhat the usage of the caste is. But it may be
that on questions relating to the vajidity of the marriage, usage
is more easily held to be established than in a case where a
custom in derogation of a rule of inheritance is set up.

§ 129. From Vedic times, though monogamy has been Polygamy,
the rule, polygamy has, as an exception, existed, side by side.

The rules relating to anuloma marriages allowed a man
more than one wife. But the wife who was first wedded
was alone the wife in the fullest sense (A). Apastamba says
that if a man has a wife, who is willing and able to perform
the religious duties and who bears sons, he shall not take a
second wife (i). One text of Manu seems to indicate that
there was a timfi when a second marriage was only allowed
to a man after the death of his former wife (/). It was only
when a wife was barren, diseased, or vicious, that she could
be superseded and a second marriage was valid; as also

(/) Muthuswami Mudaliar v. Masdamam (1910) 33 Mad., 342,
355.

{g) Per Shah, J., in Bai Gulab v. Jiwanlal (1922 ) 46 Bom., 871,
877, 878.

(h) Vedic Index, 1, 478; Jolly, L & C, 140.

ii) Apas., II, 5, 11, 12-13.

(y) “Having thus kindled the sacred fires and performed funeral
rites to his wife, who died before him, he may again marry, and again
light the nuptial fire.” Manu, V, 168; and see IX, 101, 102. Monogamy
IS one of the tenets of the Modern Brahmo Samaj Sect. Sonaluxmi v.
Vishnu Prasad (1904) 28 Bom., 597.

184

MARRIAGE AJ^D SONSHIP.

[chap. IV,

Monogamy
by statute

when she consented (A) . On the supersession of a wife, the
husband had to make provision for her (Z). Other passages
provide for a plurality of wives, even of different classes,
without any restriction (m) .

A peculiar sanctity, however, seems to have been
attributed to the first marriage, as being that which
was contracted from a sense of duty, and not
merely for personal gratification. The first married wife
had precedence over the others, and her first-born son over
his half-brothers (n) . It is probable that originally the
subsequent wives were considered as merely a superior class
of concubines, like the handmaids of the Jewish patriarchs.
It is now settled in the Courts of British India that a Hindu
IS without restriction as to the number of his wives, and may
marry again without his wife’s consent, or any justifica-
tion (o). Custom, however, prevents m some cases any
second marriage without the consent of the first wife and
without making provision for her (p),

130. Marriages contracted between Hindus under the
Special Marriage Act are now made monogamous by statute .
So also, the marriages of the Nairs and others who are govern-
ed by the Marumakkathayam law of Malabar are strictly

(k) Yajn, 1, 73; Manu, IX, 77-82. This seems still to be the usage
among some castes of the Deccan. Steele, 30, 168 and m Bengal,
Kally Churn v. Dukhee (1879) 5 Cal, 692 The Pondicherry Courts,
upon the advice of their Consultative Committee, have decided in 1893,
that the husband cannot, without the consent of the first wife, take a
second, unless the first is suffering from some incurable disease, or
has failed to produce male offspring. A wife who is barren may be
replaced after eight years, one whose children kre dead after ten
years, and one who has only given birth to females aftei eleven years
A second marriage, contracted otherwise than under the above condi-
tions, may be annulled at the instance of the first wife, and when
annulled neither the second wife, nor her children can inherit (Sorg
H.L., 51 f Co. con., 265, 306, 364, 371). These decisions appear to
have been given on the authority of Manu and other writers as well
as upon actual usage They accord with the observation of the Abbe
Dubois, he says that polygamy was tolerated among persons of high
rank, though even among them it was looked upon as an infraction of
law and custom, in fact an abuse (Dubois, 210).

(/) Yajn, II, 148, Manu, IX, 77-82

(m) Manu, III, § 12, VIII, § 204, IX, 85-87.

(n) See Manu, III, §§ 12, 14, IX, §§ 107, 122-125.

(o) Daya Bhaga, IX, § 6, note; 1 Stra. H.L., 56, Steele, 168;
Huree Bhaee v. Nuthoo, 1 Bor., 59 (65) , Viraswamy v. Appaswamy
1 Mad. H.C., 375 1 Binda v. Kaunsilia (1892) 13 All, 126, 163, Thapita
V. Thapita (1894) 17 Mad., 235, 239.

ip) See Palaniappa Chettiar v. Alagan Chetti (1921) 48 I.A., 539,
543 ; 44 Mad., 740, 744, 749.

(q) The Special Marriage Act (III of 1872) Ss. 15 and 16.

PARAS. 130-131.] SECOND MARRIAGES OF WOMEN.

185

monogamous as they are now governed by the Madras
Marumakkathayam Act, 1932, which prohibits polygamy (r).
The marriages of all Nambudris in the province of Madras
who are not governed by the Marumakkathayam law of
inheritance are now regulated by the Madras Nambudri Act
(XXI of 1933) which revives the old Hindu law rule. No
Nambudri, while there is a Nambudri wife living, can marry
another Nambudri woman except where the former is
afflicted with an incurable disease for more than five years or
where she has not borne him any child within ten years of her
marriage or where she has become an outcaste ( 5 ).

§ 131. The prohibition against second marriages of
women, either after divorce or upon widowhood, has no
foundation either in early Hindu law or custom. Passages
of the Vedas quoted by Dr. Mayr sanction the remarriage
of widows (0 • And the second marriage of women who
have left their husbands for justifiable cause, or who have
been deserted by them, or whose husbands are dead, is
expressly sanctioned by the early writers (i/).

The authority of Manu is strongly on the other side; but it is
plain that this is an instance where the existing text is the result
of amendments or modifications in the old text to suit the
changed conditions of society. According to the Arthasastra
of Kautilya, a wife or husband may obtain divorce from the
other, either on the ground of mutual enmity or apprehension
of danger from the other. But the provision was confined
to marriages in the unapproved forms. Detailed provisions
are given concerning the remarriage of women whether their
first marriage wws in approved or unapproved forms (v).
Manu declares that a man may only marry a virgin, and
that a widow may not marry again (w). The only exception
which he appears to allow is in the case of a girl whose
husband has died before consummation, who may be married
again to the brother of the deceased bridegrcTom (a;). On

(r) The Madras Marumakkathayam Act, 1932 (XXII of 1933), S. 5.

(s) The Madras Nambudri Act (XXI of 1933) S. 11.

(«) Mayr, 181. It is now restored by Act XV of 1856.

(u) Nar., XII, §§ 97-101, see, too, §§18, 19, 24, 46-49, 62, Devala,
Dig., II, 165; Baudh., IT, § 20; Vas., XVII, § 13; Kalyayana, Dig., II,
171.

(v) Shamasastri, 191, 195; Jolly, L & C, 143, 144; Ghose, I, 795.
(m;) Manu, VIII, § 226, V, §§ 161-163. See, to the same effect,

Apastamba, II, VI, 13, § 4.

(x) Manu, IX, §§ 69, 70; Vas., XVII, 74 places no restriction on
her second choice.

Second
marriages of
women
formerly
allowed.

186

Probable
omission in
present text
-of Manu

Usage of
other tribes

MARRIAGE AND SONSHIP. [CHAP. IV,

the other hand, two other texts appear to recognize and
sanction the second marriage, either of a widow, or of a
wife forsaken b\ her husband (y). At ix., § 76, a wife,
whose husband lesides abroad, is directed to wait for him
eight, six, or three, years ac/’ording to the reason for his
original absence Nothing is said as to what is to happen
at the end of the time Kulluka Bhatta inserts a gloss: —
“after these terms have expired, she must follow him” (z).
Now if we look to the corresponding part of Narada, who had
an earlier text of Manu before him, we find that he lays
down that “there are five cases in which a woman ma> take
another husband, her first husband having perished, or died
naturally or gone abroad, or if he be impotent, or have lost
his caste.” Then follow the periods during which a woman
is to wait for her absent husband, and the whole matter is made
into sense by the direction that, when the time has expired,
she may betake herself to another man (a) . Nothing is
said about hei following him, which after such an absence
would probably be impossible or useless. If a similar
passage had followed § 76 m Manu, the texts at § § 175, 176
would be intelligible and consistent.

When second mairiages weie no longer allowed, these
passages seem to have been left out, and others of an exactly
opposite character were inserted, the texts at § S 175, 176 then
became unmeaning, but they were retained to explain the
phrase, “son of a re-married woman,” which had already
appeared in the list of subsidiary sons. It is probable that
the change of usage on this point arose from the influence of
Brahmanical opinion, mairiage coming to l^e looked upon as
sacrament creating an indissoluble bond.

^ 152. When we examine the usages of the aboriginal
laces, or of those who have not come under Brahmanical influ-
ence, we find. a system prevailing exactly like that described by
Narada. Among the Jat population of the Punjab, not only
a widow, but a wife who has been deserted or put away by
her husband, may marry again, and will have all the rights
of a lawful wife The same rule exists among the Lmgayats
of South Kanarai6). In Western India, the second

(y) Manu, IX, §§ 17S, 176 See 1 Gib, 34, 104

(z) This IS apparently founded on a text attributed to Vasishtha,
XVII, 75 — whith IS to the same effect.

(a) Narada, XII, §§ 97-101

ib) Punjab Customary Law, II, 131, 174, 190, 192, 193, Punjab
Cust., 95, Vifasangappa v. Rudrappa (1885) 8 Mad., 440.

PARA. 132.] SECOND MARRIAGES OF WOMEN.

1»7

marriage of a wife or widow (called Pat by the Mahrattas, and
Natra in Guzerat) is allowed among all the lower castes (c) .
The cases in which a wife may remarry are stated by
Mr. Steele as being, if the husband prove impotent, or the
parties continually quarrel; if the marriage were irregularly
concluded; if by mutual consent the husband breaks his
wife’s neck ornament, and gives her a chorchittee (writing
of divorcement), or if he has been absent and unheard of
for twelve years. Should he afterwards return, she may live
with either party at her own option, the person deserted
being reimbursed his marriage expenses. A widow’s pat is
considered more honourable than a wife’s, but children by
pat are equally legitimate with those by a first marriage (d) .
The right of divorce and second marriage has been repeatedly
affirmed by the Bombay Courts (e). So, in Southern India,
including Cochin and Travancore, the marriage of widows
is not forbidden by either religious or caste custom to the
majority of the "population. The prohibition exists among
the Brahmins, Kshatriyas and Vaisyas and also among the
higher classes of Sudras who claim either equality or wear
thread or who are otherwise high in the social scale or who
emulate or follow Brahmin customs (/). In the absence
of any custom permitting remarrige of widows, it was prohi-

(c) Mam V. Zaboo A.I.R., 1926, Nag., 488.

id) Steele, 26, 159, 168; W. & B., 391 to 394, 368, 369. The
futwahs recorded at pp. 112, 114, 139, 141 were evidently given by
Shastries, who treated such second marriage as illegal. See, too, Huree
Bhaee v. Nuthoo 1 Bor., 59 (65), note. As regards Karao marriages,
see Kishan Dei v. Sheo Paltan (1926) 48 All., 126, Balraj v. Jaikaran
A.I.R., 1931, All., 4«7.

(e) As to divorce, see Kaseeram v. Umbaram 1 Bor., 387 (429) ;
Kasee Dhoollubh v. Button BaeCy ib , 410 (452) , Muhashunker v. Mt.
Oottum 2 Bor., 524 (572) , Dyaram v. Baeeuniba, Bellasis, 36, R. v.
Karsan (1864) 2 Bom. H.C., 117; R, v. Sambhu (1876) 1 Bom., 347;
Government of Bombay v. Ganga (1880) 4 Bom., 330; Empress v. Umi
(1882) 6 Bom., 126. As to widow marriage, Hurkoonwar v. Button
Baee 1 Bor. 431 (475) ; Treekumjee v. Mt, Laro Laroo 2 Bor., 361
(397) ; Baee Button v. Lalla Munnoohur, Bellasis, 86, Baee Sheo v.
Ruttonjee Morns, Pt. I, 103; Khemkor v. Umiashankar (1873) 10
Bom., H.C., 381. See per curiam Rahi v. Govind (1876) 1 Bom., 97, Ilk
Mohammad Jan v. Mt, Sundar A.I R., 1934, All., 884 (remarriage
among low classes).

if) Widow-marriage and divorce are common among the Vellalans
of the Palanis, the Maravers IKattamanachiar v. Doraisinga Tevar
(1871) 6 M.n.C., 310; Murugayi v. Viramakali (1878) 1 Mad., 2261,
the Kalians, the Malyalis of North Arcot, the Bhat Rajahs, the
potters ISankartdingam Chetty v. Subban Chetty (1894) 17 Mad.,
479], barbers and tank diggers, and many others who are now included
in the Scheduled Castes. In the Lower Provinces of Bengal and
Eastern and Western Bengal, they are not practised by the higher
classes; widow marriage is recognised among the Vamosudras of

188

MARRIAGE AND SONSHIP.

ICHAP. IV.

Remarriage

legalised.

Marital

duties

Restitution
of conjugal
rights

bited by Hindu law. But since the Hindu Widows’ Re-
marriage Act (XV of 1856), It has become perfectly legal.

§ 133. On mariiage, the wife passes into the dominion
of her husband. The husband is the legal guardian of his
minor wife (g) and on his death, the guardianship of the
wife, if still a minor, passes to her husband’s relations (h) .
Hindu law expects every husband to live with his wife and
to maintain her and mutual fidelity is the legal duty, both
on the part of the husband and the wife (i). The husband
IS therefore entitled to require his wife to live in his house
from the moment of the marriage, however young she may
be, but this right does not exist where, bv custom or agree-
ment, the wife is to remain in her parent’s house until her
puberty (j) or as m the case of some tribes, even afterwards.
Such a custom is neither immoral nor opposed to public
policy (A:). Agreements between a husband and wife to
live apart or agreements enabling a wife to tivoid a marriage
are forbidden by Hindu law and contrary to public policy
and can be no answer to a suit for restitution of conjugal
rights by the husband against the wife (/)

§ 134. Where the marriage is once completed, if either
party refuses to live with the other, the remedy is by a suit

Bengal, Hurry churn v Nimaichand (1884) 10 Cal, 138 In Bihar ^
the Banias adopt widow marriage In the Northern parts of Bihar,
in Orissa and in Chota Nagpur, it is generally practi'-ed except among
the Brahmins, Kayaslhas, Banias and Rajputs It is universal among
the Darjeeling tribes and also in Assam except a few of the higher
castes Kudornee v Jotee Ram (1878) 3 Cal, 305 (customary divorce)-
The various Census Reports and Manuals contain full information

(g) In re Dhuronidhur (1890) 17 Cal, 298.

(A) Khudiram v. Bonwanlal (1889) 16 Cal, 584, Chinna 4lagum
Perumal v V inayagathammal (1928) 55 M.L J , 861, but see Tota Ram
V. Ram Charan (1911) 33 AIL, 222 (where lather of a minor widow
was appointed her guardian in preference to her husband^s relations)--

(^) Manu, IX, 101, 102

(/) Katee Rom v. Mt Gendhenee (1875) 23 W.R., 178, Suntosh
Ram V. Gera Pattuck (1875) 23 W.R., 22, Surjyamoni v. Kalikanta
(1901) 28 Cal, 37, Arumuga v V iraraghava (1901) 24 Mad, 255;
Navnit Lai v Purushotam (1926) 50 Bom , 268

{k) Lenga Lalung v. Penguri (1915) 22 C L.J., 92, 20 C W N., 406.

(/) Sitaram v. Aheeree (1873) 11 Ben. L R., 129; Tekait Monmohini
V. Basanta (1901) 28 Cal, 751, Paigi v. Sheo Narain (1886) 8 All,
78; Krishna Aiyar v. Balammal (1911) 34 Mad, 398 (where an
agreement providing for separate living was held invalid), Venkatapathi
V. Puttamma (1936) 71 M.LJ, 499, 504, but see Lenga Lalung v.
Penguri (1915) 22 CLJ, 92, 20 CWN, 406 (according to tribal
custom, among the Lalungs, the wife may refuse to go to husband’s
house and recjtiire her husband to stay with her)

PARA. 134.]

MARITAL DUTIES.

for restitution of conjugal rights (m) . It has long since
been settled that such a suit would lie between Hindus and
the decree in such a suit will be enforced according to Or. 21,
Rules 32 and 33 of the C. P. Code (n) . The Court has
always a discretion in the matter and may refuse to pass a
decree for restitution of conjugal rights against the wife if
the husband is suffering from incurable and contagious
disease (o) or if he adopts another religion (p) or if he keeps
a concubine in the house (p^) or is guilty of cruelty which
need not be physical violence but may be conduct calculated
to undermine the wife’s health (^). In deciding questions
of cruelty, the entire conduct of the husband must be looked
at and he is not always entitled to a decree in the absence
of a plea of cruelty by the wife. Restitution can be
defeated on the ground of desertion of the wife for a long
period, and continued disregard of his marital obligations
towards her; it is not necessary to prove actual cruelty (r).
In a case in Allahabad ( 5 ), the Court refused restitution on
the ground of the husband’s continued misconduct. Restitu-
tion has also been refused where there is a great disparity
in age when the marriage has not been consummated at all (0 .
When a wife pleads desertion and want of bona fides, she
should be allowed to lead evidence so that the Court may

(m) Tekait Mon Mohini v. Basanta Kumar (1901) 28 Cal., 751;
Dadaji v. Rukmabai (1886) 10 Bora., 301.

(n) Kondal Rayal Reddiar v. Ranganayaki Animal (1923 ) 46 Mad.,
791, 801.

(o) Bai Preem Kuvar v. Bhika (1868) 5 Bora. II.C.A.C , 209;
Shinnappaya v. Rajamma (1922) 45 Mad., 812, 814. It is no defence
to such a suit that the defaulting party is, from illness or other cause,
unht for conjugal intercourse, though if the complainant was the party
so unfitted and if the incapacity was of a permanent and incurable
nature, it would prima facie be a bar to the relief sought for.
Purshotam Das v. Bai Mam (1896) 21 Bom., 610.

(p) Paigi V. Sheo Narain (1886) 8 All , 78.

(p^) Dular Koer v. Dwarkanath (1907) 34 Cal, 971 (low caste
prostitute) ; Gantapalh v. Gantapalli (1897) 20 Mad., 470 (on adultery
of husband, wife can get separate maintenance).

(qr) Kondal Rayal v. Ranganayaki (1923) 46 Mad., 791; Moonshe
Buzloor V. Shumsoonissa (1867) 11 M.I.A., 551., Yamunabai v. Narayan
(1876) 1 Bom., 164.

(r) Kondal Rayal v. Ranganayaki (1923) 46 Mad, 791; Baburam
V. Mt. Kokla (1924) 46 All., 210 (reasonable apprehension of bodily
injury enough) ; Mt. Chilha v. Chedi (1929) 4 Luck., 355; A.I.R., 1929,
Oudh., 121 (living m adultery with wife’s sister) . Ude Singh v. Mt.
Daulat Kuer (1935) 16 Lah., 892; Rukmani v. T. R. S, Chan (1935)
69 M.L.J., 210; A.I.R., 1935, Mad., 616; Venkatapathi v. Puttamma
(1936) 71 M.L.J., 499.

( 5 ) Husaini Begam v. Md. Rustam Ah (1907) 29 All., 222.

{t) Gurumukh Singh v. Mt. Harbans A.T.R. Tish, 902

(husband 54 years, wife 7 years).

190

MARRIAGE AND SONSHIP.

[chap. IV,

Marriage

expenses.

be in a position to judge whether the relief sought for by the
husband should be granted or not and if so, on what condi-
tions, if any {u) While the husband’s adultery m the past
which IS no longer persisted in, will not be a good ground
for refusing restitution, if he persists in a life of immorality,
whether living in adultery with a woman or not, that will
be a sufficient ground, on principles of justice, equity and
good conscience to disentitle him to the relief of restitu-
tion iv) , While decided cases have gone so far as to hold
that taking a second wife is not by itself a ground for
refusing restitution of conjugal rights (zc), other circum-
stances making it very difficult for the first wife to live m the
same house as the second wife may afford ground for refusing
lestitution. Clear condonation of adultery or cruelty will
probablv disentitle a person from setting up that plea in bar
of restitution.

135 As already seen, marriage is a necessary samskara
for all castes and the expenses of marriages of members of
the family are to be met out of the joint family property by
the father or any other peison in whom the family properties
are vested for the time being (;t). As long as the family is
undivided, all marriageable sons (y) and daughters (z) can
get married at the expense of the family estate but after the
severance of the joint status, theie can be no provision for
the expenses of a co-parcener’s marriage (a) nor can any
provision be made m his favour for such purposes in a decree
for partition, after a suit has been instituted But the right
of the daughter to her marriage expenses is based on her right

(u) Bai Jivi V Narsuigh (1927) 51 Bum, 329
(r) Binda v Kaunsilia (1892) 13 All, 126

l7c) I' irasami v Appasami (1863) 1 MHC, 375, Motilal \ Bai
( hanthal (1902) 4 Bom LR, 107, Arumugam v Tnlukanam (1884)
7 Mad, 187, Mt Kishan Dei v Mangal Sen, A l.R , 1935, All, 927

(1) Kameswara Sabtri v Veeracharlu (1911) 34 Mad, 422

(v) Sundrabai v Shivnarayan (1908) 32 Bom, 81, Bhagirathi v.
Jofihii Ham (1910) 32 All., .575, Gopalakribhnan \ V enhatanarasa
(1914) 37 Mad., 273, FB., Debt Lai v Nand Kishore (1922) 1 Pat,
266

( 2 ) VaiJxuntain \ Kallapiran (1900) 23 Mad, 512 Siindan v.
Subramanyam (1903 ) 26 Mad, 505 (father not habit for expen->es
of his daughter’s marriage m the ahs-t nee of family property),
Malayandi v Subbaraya (1911) 21 M L J , 521, Ranganaiki v Ramanuja
(1912) 35 Mad., 728, Srinivasa v. Thiriivengadatha (1915) 38 Mad,
556.

(ff) Subbayya v Anantaraniayya (1930) 53 Mad, 84, Ramalinga
V Narayana (1922) 49 I A , 168, 45 Mad, 489, V enkatarayiidu v.
Sivarama (1934) 67 MLJ, 486, overruling in effcei Gopalam v.
Venkata (19iT) 40 Mad, 632

PARA. 135.]

MARRIAGE EXPENSES.

191

to or interest in the joint family property and not based on
the natural obligation of a father to maintain his children
and can be enforced against a son’s share on partition (6).
A widow can alienate a reasonable portion for making a gift
to her son-in-law at the time of the marriage (c) and a
daughter can alienate a portion of the estate vested in her
for the marriage of her son, if her husband is too poor (d).
A guardian in charge of the estate of a minor can pay for
the expenses of his sister’s marriage as the minor’s estate is
liable to bear the same (e). A separated brother (/) and a
maternal uncle (g) celebrating the marriages of a sister and
niece respectively can re-imburse themselves out of the
paternal estate of the girl. A widow is not bound to spend
out of her private funds for her daughter’s marriage and she
may alienate her husband’s estate for the same (//). The
ceremonies of Grahapravesam and Ritusanti form part of the
marriage ceremony of a girl of the Brahmin caste and
expenses incurred for them are payable out of the estate of
the father (i).

(6) Subbayya v. Anantaramayya (1930) 53 Mad., 84.

(r) Ram Sumran Prasad v Gobind Das (1926) 5 Pal., 646, 683,
Gundappa v. Narasappa A.T.R., 1927, M., 455. Ramaswami v. Vengidu
Sami (1899 ) 22 Mad., 113.

(d) Mallayya v. Bapireddi (1932) 62 M L J., 39 (son), Kamla
Prasad v. Lalji (1930) 9 Pat , 721.

(e) Dedar Singh v. Bansi A.I.R, 1925, Lah., 520 (sister).

( /) Fulsingh V. Ganesh A I R., 1931, Nag , 147.

(^r) Khan Chaiid v. Raushan Das A.I.R., 1932, Lah.. 129.
ih) Satis Chandra v. Haripada (1925) 41 C.L.J , 209, A.I.R, 1925,,
Cal., 689, but see Anandarao v. V enkatasiibba Rao (1930) 58 M.L.J.,,
127; A.I.R, 1930, Atad, 287.

(i) Vaikuntam v. Kalhpiran (1903) 26 Mad, 497.

Adoption in
early times.

Putnka-putra

losing

importance.

CHAPTER V.

FAMILY RELATIONS.

Adoption.

§ 136. It IS a singular circumstance that while the entii*e
law of inheritance has been developed out of two verses of
Yajnavalkya and half of a verse in Manu (a) , and the
doctrines of ancestral property and right by birth have been
built upon a single verse of Yajnavalkya ib), the adopted son,
even in early times, should have attracted greater attention in
the Smritis. Nevertheless the adopted or dattaka son had not
in ancient India the great vogue which he has since acquired.
But he was not unknown even in Vedic times. The legend of
Sunahsepa in the Aitareya Brahmana refers to his fathei having
sold him in adoption to King Harischandra and to his subse-
quent adoption by the sage Visvamitra who had aurasa sons
of his own (c). Another vedic story tells of Rishi Atri who
gave an onlv son in adoption to Aurva (d). Apart from the
exceptional kshetiaja son, the prominence of the putnka-
putra or the son of an appointed daughter is an indication ol
the prevailing usage which was all in his favour. His equality
in status with the aurasa son both for spiritual and temporal
pur])oses was established from the earliest times and he had
to offer pindas both to his father and to his maternal grand-
fathei and he took the estate of his own father if he left no
other son (e) , In many respects therefore, he was like the
son of two fathers and it must have been increasingly felt
that his father should not be depri\ed of the continuance of
his own line. The son of the appointed daughter, in offering
pindas to his mother, had to recite the ^otra of his maternal
grandfathei, as in the putrikakarana marriage the gift of the
girl was not complete (/) . For religious purposes, this
anomalous position of a son of two fathers must have been
found to be unsatisfactory and, as a consequence, there was
the repealed injunction not to marrv brotherless maidens.

(а) Yajn , II, 135-6, Manu, IX, 187

(б) Yajn, IT, 121.

(c) Alt Brahm , VII, 3, Va'^ , XVII, 30 to 35
id) Kane, H D.S , 6.

(e) Manu, IX, 132, 133, 140, Yajn., II, 128, Vishnu, XV, 47.

if) Mit. in Yajn., I, 254, Vidyarnava’s trans , 343 344. Manu in
IX, 127, refers to an appointed daughter and m 130 to a daughter,
though comm«^ itators think otherwise Arthas , III, 7, Shamasastri, 202

PARAS. 136-137.] POSITION OF THE DATTAKA.

193

which would make it difficult to secure suitable bridegrooms
if the institution of putrika-putra was insisted upon. There
was also the injustice to his uterine brothers who were
excluded bv their appointed brother from the enjoyment of
their maternal grandfather’s property. Besides, the daughters
other than the appointed daughter appear to have come into
their own by the time of the Arthasastra of Kautilya (g) . This
must have led to the gradual recognition as heirs to the
maternal grandfather of sons of daughters without any
appointment, while at the same time the putrika-putra s duty
to offei pinda to the maternal ancestors was imposed also on
the daughter’s son {h). But as the daughter’s son was only
d bhinnagotra sapinda, it became necessary that an adoption
of a son should be made whenevei a continuation of the direct
line was desired either for spiritual or temporal purposes.
All these reasons must have powerfully operated to bring the
adopted son into a new prominence. Accordingly Manu
provided for the identity of the adopted son with the family
into which he was adopted (i).

§ 137. It is evident that the adopted or dattaka son had
become important by the time of Gautama, Baudhayana and
Manu, for all of them place him in the first set of six sons
who are both heirs and kinsmen and next only to the aurasa
and kshetraja sons (;). On the other hand, Apastamba who
does not recognise any secondary son expressly states that
“the gift, or acceptance of a son, and the right to buy or
sell a child, is not recognised” (A;). Vasishtha, notwithstand-

(g) Arthas., Ill, 5; Shamasastri, 197.

{h) Manu, IX, 136: “Through that son whom a daughter, either
not appointed or appointed, may bear to a husband of equal caste,
his maternal grandfather has a son’s son, he shall present the funeral
cake and take the estate.” Yajn., I, 228, 242; II, 135-136; Manu’s
text applies to daughter’s son ( douhitra) and this is in accordance
with the opinions of Govmdaraja, Sarvajnanarayana and Nandana.
Medhatithi and Kulluka differ from this but the former’s comment
Itself shows the weakness of his position that it only applies to the
appointed daughter’s son whose case is already covered by the express
text of Manu, IX, 132, From a historical point of view, there can be
little doubt that Yajn. was not the first to provide for the inheritance
of the daughter’s son who is not mentioned by him but is supposed
to be included by him in the word ‘and* (cha) and Yajn’s rule
regarding offering of pindas to maternal ancestors only follows that of
Manu; but see Dr. Sarvadhikari (2nd edn., 45) and Mullick, J., in
Umashankar Prasad v. Mt. Nageswari Koer (1918) 3 Pat L.J., 663, 676
(i) Manu, IX, 141, 142.

(;) Gaut., XXVIII, 32, 33; Baudh., II, 2, 3, 31, 32; Manu, IX,
159, 160.

(k) Apas., II, 6, 13, 11; see also a text of Katyayana cited in Dat.
Mima., I, 7-8; Mit., I, XI, 10 refers this prohibition to the giver, not
to the taker of the son.

15

Daughter’s

son.

Dattaka

Different
views as to
his rank.

194

LAW OF ADOPTION.

[chap. V,

ing the fact that in ten sutras he lays down the rules relating
to adoption and stresses its importance, gives him the eighth
place (/) ; so also Vishnu. Yajnavalkya gives him the
seventh place (rn) , The Arthasastra of Kautilya and Narada
rank him as the ninth (n). His low rank was evidently due to
the fact that he was not recognised by these writers as heir to
anybody but to the man who took him in adoption. These
differences, however, do not justify any inference that by a
subsequent alteration in the text of Manu, the adopted son
was promoted to the third place, for we find the more ancient
Dharmasutras of Gautama and Baudhayana giving him the
same prominence as Manu does (o) The existing compila-
tion of Manu was clearly earlier than the Smritis of Yajna-
valkya and Narada and the early importance of the adopted
son IS further attested by the fact that the Grihyasutra of
Baudhayana contains the rules about the adoption of a son,
substantially similar to those in the Vasishtha Dharmasutra
of the Rigvedins The Saunakasmriti also contains the rules
for the adoption of a son (p). The low rank assigned to
the adopted son by Yajnavalkya and Narada was only due
to the difference of opinion in the law schools of their days
and not to the infrequency of adoptions in actual piactice.
Asahaya (c. 600 AD), the commentator of Narada and
Visvarupa (c. 800 A.D.). the earliest commentator on the
Yajnavalkyasmriti, however rank the dattaka as the third
The difference between Manu, Yajnavalkya and Narada, as
regards the place assigned to the adopted son was probably
due to the difference in local customs as suggested in the
Viramitrodaya (q).

il) Vas., XVII, 26, 28; Vishnu, XV, 18

(m) Yajn., II, 128-132

(n) Arthas , Shamasastri, 202, Nar , XIII, 4^-47

(o) Gaut, XXVIII, 32, 33, Baudh,, II, 2, 3, 31-32, Dr. Buhler’s
criticism that the third and the fourth prasnas of Baudhayana
Dharmasutra appear to be subsequent additions does not affect the
passage in question. Baudhayana's sutras on adoption, taken from the
Grihyasutra of Baudhayana and translated by Dr. Buhler are to be
found as an appendix to the Baudhayana Dharmasutra in S.B.E.,
Vol. XIV, part II, pp. 334-336

ip) Saunaka’s Putrasangravidhiy as to its antiquity and authority,
see Bhagwansmgh v. Bhagwansingh (1895) 17 All., 294, 320. The
entire passage from the Saunaka Smriti is cited in the Dat. Mima in
several places* I, 4, II, 2, 74; IV, 1; V, 2-21, and in the V Mayukha
(IV, V, 8-10).

(q) Visvarupa, 249; for Asahaya, see Jayaswal, M. & Y., 252;
Viramit., Setldr, 370.

PARAS. 137-138.] dattaka’s prominence.

195

Where any one of several brothers had a son, the latter Brother’s son
was considered to be the son of all the brothers; Kulluka
Bhatta actually adds a gloss: ‘‘So that if such nephew
would be the heir, the uncles have no power to adopt a son”;
and the same view was maintained by Chandesvara and other
commentators (r). But even where a brother’s son existed, still
an adoption would be necessary, “for the celebration of name,
and the due perpetuation of lineage” ( 5 ) especially as parti-
tion and self -acquisition became more common. The
reconciliation between the claims of the agnatic kindred and
the right of a man to adopt a son for religious or secular
purposes was effected by the requirement that the son
adopted must, as far as possible, be a near kinsman (sapinda) .

§ 138. It is evident that the spiritual motive was not Reasons for
mainly responsible for the increasing vogue of the dattaka. dattaka’s
When, owing to wars and other causes, families tended to
become extinct, or rights to large estates and principalities
were in jeopardy on the extinction of leading families and
when claims had to be advanced before the rulers of the
country for the recovery of estates, adoption must have become
a fertile expedient for reviving or enforcing such claims.

Adoption of a son to the last owner was a simple and
intelligible device compared to the difficulty of proving or
establishing the claim of a widowed rani or a remote male heir.

It is not surprising therefore that in India, after the Gupta
einpiie and especially in the Mohammedan period, adoption be-
came even more important. Accordingly, when the Mitakshara
was written, Vijnanesvara, in commenting upon Yajnavalkya
who assigns the adopted son to the seventh rank and does
not treat him as an heir to the adopted father’s collaterals,
treats of him adequately and restores him to the position
assigned to him by Manu it). The Smrilichandrika is even
more emphatic when it says that, in the Kali age, the adopted
son IS alone acknowledged, besides the aurasa son and prohi-
bits the appointment of a daughter (w). Since the sale of a
son was blameworthy and gift was spiritually the most
meritorious form of transferring dominion, it became the
normal mode of adoption. The other adopted sons, the son
bought (Krita), the deserted son (Apaviddha) and the son
self-given (Svayamdatta) disappeared except the son made

(r) Vas., XV, 8; Vishnu, XV, 42; Manu, IX, 182, Dat. Chand., I,
21; Dig., II, 419, referring to the Ratnakara.

(s) Dat. Chand., I, 22; Vyav. Darp., I, 292.
it) Mit., I, XI, 9-15, 30-31.

(a) Smntichandrika, X, 5, 12, 16.

196

LAW OF ADOPTION.

[chap. V.

Religioub
motive only
^^econdary.

Influence
of seculai
motives

(Kntrima) in Mithila (v). The Kritrima son however is not
an adopted son in the full sense. When the texts say that
a man should adopt after giving intimation to the king (w).
It is evident that the adoption partook more of a secular
character than of a leligious one as such intimation was ob-
viously necessary in the case of relatively large possessions
The religious motive for taking a son in adoption could not
have been veiy great if Vishnu, Yajnavalkya and Narada could
assign him only a very low place. While his identity with
the immediate agnatic family is now fully established, it is
noteworthy that the adopted son’s sapinda relationship in the
adoptive family extends only to three degrees and not to the
usual seven degrees, and the period of pollution extends only
to three davs and not to the usual ten days What is even
more important is that on the anniversary of his adoptive
father’s death, he pei forms the ^raddha in the ekoddishtha form
111 honour of the deceased only i e. consecrated to a single
ancestoi and he does not, like the aurasa s^an, offer divided
oblations to the fourth, fifth and sixth ancestors, even when
he performs the sraddha in the usual way (rt). While the conti-
nuance of the prohibition to marry in his own natural family
is intelligible on giounds of consanguinity, that he should
occupy a position greatly inferior to the son from the
religious point of view, shows that the recognition of the
institution of adoption has been more due to secular reasons
than to any religious necessity.

§ 139. It must not be supposed that the religious motive
for adoption ever excluded the secular motive. The propriety
of this motive was admitted by the Sanskrit writers themselves.
In the ceremonial for adoption given by ^ Baudhayana, the
adopter leceives the child with the words: “I take thee for
the fulfilment of religious duties. / take thee to continue
the line of my ancestors'' (y). The Dattaka Mimamsa quotes a

(v) See as to the obsoleteness of the Krita form, 1 Stra. H L , 132,
1 NC, 72. Eshankishor v. Hans Chandra (1873) 13 B.L.R. Appx., 42,
21 W R , 381. As to the Svayamdatta, Bashetiappa v. Shivlingappa
10 Bom H C , 268. As to a form called paluk putro, Kalee Chunder
V Sheeb Chunder 2 WR, 281 Other forms might perhaps be valid,
when sanctioned by local custom, as the Krita system is said still to
exist among the Gosains, 1 W MacN. 101

(w) The comment that ‘king’ includes the chief of a town or
village emphasises it as adoption becomes commoner

ix) Dat Mima, VI, 32, 39, VIII, 6, IX, 8, Sarkar ‘Adoption’, 2nd
edn., 387-388, Vaidyanatha Dikshitiyam, Setlur, 578, Ghose, HL.
Vol. I, 654, but see Vyav Mayukha, IV, V, 31-36; Mandlik, 62, 63.

(y) The whole passage is translated by Dr. Buhler in his article
on Saunaka, Journ. As. Soc. Bengal, 1866, and in his edition of
Baudhayana, ITI, 5, 11

PARA. 139.] SECULAR NATURE OF ADOPTION.

197

text that a man should adopt a son ^‘for the sake of the funeral
cake, water and solemn rites, and for the celebrity of his
name” (z) . And the author of the Dattaka Chandrika admits
that, even where no spiritual necessity exists, a son may,
and even ought to, be adopted, for ‘the celebration of
name, and the due perpetuation of lineage’ (a) . In fact,
the earliest instances of adoption found in the Hindu legend
are of daughters (b). The Kritrima form of adoption, which
is still in force in Mithila, has no connection with religious
ideas. Among the tribes who have not come under Brahma-
nical influence, we find that adoption is equally practised; but
without any of the rules which spring from the religious
fiction. One Sanskrit purist actually laid it down that
Sudras could not adopt, as they were incompetent to perforin
the proper religious rites (c). As a matter of fact they
always did adopt, but were expressly freed from the restric-
tions which fettered the highei classes. They not onlv
might, but did aoopt the son of a sister, or of a daughter, who
was forbidden to others So in the Punjab, adoption is
common to Jats (d) and Sikhs, but with them it is simph
the appointment of an heii. Similarly in Westein India
amongst the Talabda Koli caste and Kadwa Kunbi caste,
though no religious significance attaches to adoption, the
right to adopt has been upheld by the Courts (e). The Jains
have so generally adopted the Hindu law that the Hindu
rules of adoption are applied to them in the absence of a
contrary usage (/) and adoptions are quite common among
them. But since they repudiate the Brahminical doctrine of
obsequial ceremonies, the offering of oblations for the salva-

( 2 ) I)at. Mima., VII, 30-38.

(а) Dat. Chand., I, 22, cited in Kannepalli Suryanarayana* s case
(1906) 33 I.A., 145, 154; 29 Mad., 382, 389.

(б) Dat. Mima., VII, 30-38. The Thesawaleme shows that such
adoptions were practised among the Tamil races of Southern India
In Jaffna, the Tamil people adopt both boys and girls, and so little
is there any idea of a new birth into the family, that the adopted
son can marry a natural born daughter of the adopting parents, and,
where both a boy and a girl are adopted, they can intermarry The
secular character of the transaction is even more forcibly shown by
the circumstance that the person who makes the adoption must obtain
the consent of his heirs. If they withhold it, their rights of inheritanre
will be unaffected. Thesawaleme, II, 1, 4, 5, 6.

(c) Vachaspati, cited in Dat. Mima., I, 26.

(d) Basant Singh v. Brij Raj Saran Singh (1935) 62 I A., 180.
57 All., 494.

(e) Bhala Nahana r. Parbhu (1878) 2 Bom., 67; Patel Vandravan
V. Patel Manilal (1892) 16 Bom., 470.

(/) Sheokuarhai v. Jeoraj (1920) 25 C.W.N., 273. 275 P.C
fSitambari Jains).

198

LAW OF ADOPTION

[chap. V,

tion of the soul of the deceased and do not believe that a
son either by birth or by adoption confers spiritual benefit
on the father, the objects and motives of such adoptions are
purely secular (g).

Amongst the vast majority of Hindus, mere gift and
acceptance which are quite sufficient to constitute adoption,
are held to be secular, though the son adopted is expected to
and does perform the customary funeral rites. In Mithila.
where the Hindus are as religious as in the rest of India, the
religious duty of a widow is not recognised and she is not
entitled to make an adoption in the dattaka form. The
prohibition shows that adoption is treated as a secular insti-
tution, though It may carry with it religious obligations on
the part of the son adopted. Again, a widow who has the
authority of her husband or the assent of his sapmdas is not
bound to adopt a son to perform the sraddhas for her husband
The religious motive here is verv much weakened. Where as
in Bombay, a widow has the right to adopt, even without the
permission of her husband or the assent of his sapindas. hut
need not, the reasonable inference is, that it is her right
because adoption may be a proper act but not a religious duty
on her part The religious motive must therefore be
admitted to be not very appreciable, even in Bombay,
especially as a man is allowed to adopt one older than
himself, or a married man with children (h) Even in cases
where the Court has held that there is a mandate to the
widow to adopt, she is not bound to make an adoption. In
most cases, the authorities given by husbands in wills and
other documents are purely permissive, showing no conscious-
ness on the part of the husband of the religious necessity foi
adopting a son. On the other hand, a husband often purelv
from secular motives empowers his wife to adopt a son after
his death to continue his line and to inherit his property and
keep up his name(i)- His authority merely equips the
widow with either a sword or a shield for her protection
against the reversioners. In V enkatanarasimha v. Partha-
sarathy Appa Rao (/), in construing a will containing an
authority to adopt, the religious motive was not allowed to
aid the construction, and the Privy Council held that, in the

ig) Sheoswgh V Mt Dukho (1876 78) 5 I A., 87; 1 All, 688,
Dhanraj v. Sombai (1925) 52 1 A , 231, 241, 52 Cal., 482, 494, cf
Amava v Mahadgauda (1898) 22 Bom., 416, 422

ih) See also Baswant v Mallappa (1921> 45 Bom, 459

(i) See Rajendra Prasad v. Gopala Prasad (1930) 57 I. A., 296,
302; 10 Pat., 187. 195.

(/) (1913) 41 LA., 51, 72; 37 Mad., 199, 223.

PARA. 139.] SECULAR NATURE OF ADOPTION.

199

absence of a direction by the testator that there should be an
adoption, as he would naturally have done, had he wished
m all events to secure that there should be a son to perform
the due religious rites, the language of permission pointed to
the predominance of the secular motive.

'Hie acceptance of an only son in adoption, in contraven-
tion of a strict religious precept, is certainly against the
attribution of a religious motive. So too, any family oi
local usage which permits the adoption of one’s daughter’s
son or sister’s son or a mother’s sister’s son, in contravention
of a rule which is both religious and legal, cannot be held to
indicate anything but an overmastering secular motive. It is,
however, undeniable that, in the vast majority of cases
amongst the Hindus, there is a religious motive, if varying
in degree (A;), though it is equally undeniable that the secular
motive is in almost all cases the more dominant. The ques-
tion whether an adoption is inspired by secular or religious
motives has naturally arisen in the case of adoptions by
widows, made long after their husbands’ death. In many of
the cases, it cannot be said that such adoptions by widows are
made from religious motives. They are often made to divert
the course of succession, or to dispossess an heir in whom the
inheritance has already vested. Religious motives, in such
cases, are in fact conspicuously absent.

At the same time, it is unsafe to embark upon an enquiry
m each case as to whether the motives for a particular adoption
were religious or secular. An intermediate view is possible,
that while an adoption in itself may be a proper act, inspired
in many cases by religious motives, courts are concerned with
an adoption, only as the exercise of a legal right by the widow
and not as the fulfilment by her of a religious duty; and that
the limits to the exercise of her power should be set, not from
the religious point of view but from the point of view of
conflicting rights. The controversy, however, must be taken
to have been set at rest in favour of the conventional view by
a recent judgment of the Judicial Committee (/) which,
reiterating “the well-established doctrine as to the religious
efficacy of sonship”, gives full effect to it.

(A) Medhatithi’s gloss upon Manu’s text, IX, 138, (a son is called
putTa because he delivers his father from the hell called put), is
that It IS only a declamatory statement. According to him. Put does
not mean hell but only the four kinds of elemental lite on the earth
“And from this is the father delivered by his son, as soon as he is
born; which means that he is born next in a divine life.*’ Jha
Medhatithi Bhashya, Vol. V, 123.

(/) Amarendra*s case (1933) 60 I. A., 242, 12 Patf, 642,

Religious

motive

undeniable

but secular

motive

dominant

200

LAW OF ADOPTION.

[chap. V.

Early texts.

§ 140. The whole Sanskrit law of adoption is evolved
from a few texts and a metaphor. The metaphor is that of
Saunaka, that the boy to be adopted must bear ‘the reflection
of a son’ (m). The texts are those of Manu, Vasishtha,
Baudhayana, Saunaka and Sakala. Manu says; “That boy,
equal by caste, whom his mother or his father affectionatelv
give, confirming the gift with a libation of water, in times of
distress to a man as his son, must be considered as an adopted
son (Datrima ) ”. “Of the man who has an adopted (Datrima)
son possessing all good qualities, that same son shall take
the inheritance, though brought from another family”. “An
adopted son shall never take the family name and the estate
of his natural father, the funeral cake follows the family name
and the estate, the funeral offerings of him who gives his son
in adoption cease as far as that son is concerned” (n)
Vasi‘^htha sav*', “(1) Man formed of uterine blood and virile
seed proceeds from his mother and his father as an effect from
Its cause. (2) Therefore the father and the mother have
power to give, to sell, and to abandon their son (3) But let
him not give or receive in adoption an only son; (4) For
he must remain to continue the line of the ancestors. (5)
Let a woman neither give nor receive a son except with her
husband’s permission (6) He who desiies to adopt a son,
shall assemble his kinsmen, announce his intention to the
King, make buint-offerings in the middle of the house, reciting
the V'yahritis, and take as a son a not remote kinsman, just the
nearest among his lelatives” (o) To the same effect is
Baudhayana in his Grihyasutra (p). Saunaka lays down rules

(m) Dat Mima , V, 15 It heems possible that this metaphor is
Itself a mistake Dr Buhler translates the verse, “He then should
adorn the child, which (now) resembles a son of the receiver’s body,
that IS, which has come to resemble a son by the previous ceremony
of giving and receiving ’ See Journal As. Soc. Bengal, 1866, art
Saunaka Sniriti, The translation, as given in the Dattaka Mimamsa,
is, however, followed by Mr Golapchandra Sarkar, at p. 308 of his
work on Adoption, and by Mr Mandlik, p 52, in his translation of
the Mayukha where the passage occurs in full, and was accepted in
preference to that of Dr. Buhler by Banerji, J , in Bhagwan Singh
V Bhagwan Singh (1895) 17 All, 294, 321 FB Edge, C J, was of
the opposite opinion, ibid, p 386

(n) Manu, IX, 168, 141, 142. The translation of Sir W. Jones
which appeared in previous editions runs thus* “He whom his father
or mother gives to another as his son, provided that the donee ha/e
no issue, if the boy be of the same class, and affectionately disposed,
is considered as a son given, the gift being confirmed by pouring
water ”

(o) Vas , XV, 1-6, cited by Lord Hobhoiise in Sri Baliisu Guru-
hngaswami v Sri Balusu Ramalakshmamma (1899) 26 I A., 113, 130,
22 Mad., 398, 410.

(p) Baudh. Grihyasutra given as appendix in S.B.E., Vol. XIV,
part II. 334-336.

PARA. 140 .]

EARLY TEXTS.

201

substantially similar but the following which is not covered
by the other writers is important. “The adopter having
taken the boy by both hands, with the recitation of the
prayer, .... having inaudibly repeated the mystical in-
vocation . . . .; having kissed the forehead of the child;
having adorned with clothes, and so forth, the boy,
bearing the reflection of a son; .... accompanied with
dancing, songs and benedictory words, having seated
him in the middle of the house . . .; and having per-
formed the homa or burnt sacrifice with the holy texts,
should complete the remaining part of the ceremony. The
adoption of a son, by any Brahmana, must be made from
amongst sapindas . . .; or on failure of these, an asapinda
may be adopted; otherwise let him not adopt. Of Kshatriyas,
in their own class positively: and (on default of a sapinda
kinsman) even in the general family, following the same gwrw,
of Vaisyas, from amongst those of the Vaisya class; of Sudras,
from amongst tlfose of the Sudra class. Of all. and the
tribes likewise, (in their own) classes only: and not other-
wise. But a daughter’s son, and a sister’s son, are affiliated
by Sudras. For the three superior tribes, a sister’s son is
nowhere (mentioned as) a son (g). By no man, having an
only son, is the gift of a son to be ever made. By a man
having several sons, such gift is to be made, on account ol
difficulty” (r).

Sakala says; “Let one of a regenerate tribe destitute of
male issue on that account adopt as a son the offspring of a
‘sapinda’ relation particularly; or also next to him one born
in the same general family. If such exist not, let him adopt
one born in another family: except a daughter s son, and a
sister’s son, and the son of the mother’s sister” (s).

These texts apply only to the dattaka form. From these
texts and the commentaries, a body of law has been developed
which will be considered under the following heads: — First,
who may take in adoption ; Second, who may give in adoption ;
Third, who may be adopted; Fourth, the ceremonies neces-

(^) The sentence, “For the three superior tribes, a sister’s son i*
nowhere (mentioned as) a son” is given in the Dat. Mima. (II, 71.
V, 18) but not in the Vya. May.; see also Jolly, T.L.L., 162

(r) The entire passage from the Saunaka Smriti is cited in parts
in the Dat. Mima, in several places (V, 2-21; II, 2, 74). V. Mayukha,
IV, V, 8-10 (Gharpure’s edn., 69, 70; Mandlik’s edn., 52, 53).

(s) The text of Sakala is quoted in Dat. Chand, I, 11, and also
in Bhagwansingh v. Bhagwansingh (1899) 26 lA., 153, 160, 21 All.,
412, 418.

202

LAW OF ADOPTION.

[chap. V,

sarv to an adoption; Fifth, the results of adoption; Sixth,
the evidence of adoption.

Adopter must
be without
issue

Only one son
can be
adopted

Pregnancy

By bachelor
or widower

§ 141. First, who may adopt. An adoption may either
be made by the man himself, or by his widow on his behalf.
But in either case it is a condition precedent that he should be
without any male issue living at the time of adoption [t) , ‘Male
issue’ IS taken in the wide sense peculiar to the term in Hindu
law, and means three direct descendants in the male line.
Accordingly, if a man has a son, grandson, or great-grandson,
actually alive, whether natural or adopted (a), he is precluded
from adopting. The simultaneous adoption of two or more
persons is invalid as to all (a^). But the existence of a
great-great-grandson, or of a daughter’s son, or of an illegiti-
mate son who may inherit, is no bar to an adoption (v) Nor
is the pregnancy of the adopter’s wife, even where he is aware
of it, a bar to his adopting a son iw) It is now settled that
an adoption by a bachelor or by a widower is valid (a;).

Where a man’s only son has become an ascetic or has entered
a religious order, there can be no doubt that the father can
make an adoption (y) . So also where an only son professing to
be a Hindu, Buddhist, Sikh or Jama marries under the Special
Vlariiage Act. his father has the right to adopt a son {z)

(t) Dat Mima, 1, 4. 13, Dat Chand , 1, 4, 6

(u) Run gamma v Atchamnia (1846) 4 MIA, 1, Gopee Lai v

Chandraole (1872) I A Sup Vol 131, Mohesh Narain v Taruck Nath
(1893) 20 I A , 30, 20 Cal, 487, see also Lallu v Jagmohan (1896)
22 Bom, 409, 412 ,

(u^) Akhoy Chunder v Kalapahar (1886) 12 I A , 198, 12 Cal,
406, Soorendra Keshav v Doorgasoondery (1892) 19 I A., 108, 19
Cal, 513

iv) F MacN , 149, 1 W Mac., 66 note See Maharaja of Kolhapur
V. Sundaram (1925) 48 Mad, 1 (illegitimate son)

iw) N agabhushanam v Seshamrna (1881) 3 Mad., 180; Hanmant
Ramachandra v Bhimacharya (1888) 12 Bom, 105; Daulat Ram v
Ram Lai (1907) 29 AIL, 310

{X) Siith. Syn, 664, 671, Dig, II, 393, 1 W. MacN., 66, W. MacN.,
175, Gopal Anant v Narayan Ganesh (1888) 12 Bom, 329 (bachelor) ,
Nagappa v Suhba Sastri (1865) 2 Mad HC, 367 (widower),

Chandrasekharudu v Bramhanna (1869) 4 Mad H C., 270 (widower).
See also Sundaramma v Venkatasubba Ayyar (1926) 49 Mad., 941
(widower) Sountharapandian v Periaveeru Thevan (1933) 56 Mad,
759 F.B (widower) But in Pondicherry a Brahman bachelor is
considered to be incapable of adopting. (Sorg HL, 121, Co.
Con, 375)

(y) See Vivada Chmtamani, 246, Mit., II, X, 3, Daya Bh , I, 31.

(z) Sec 26.

PARA. 141.]

PERSONS WHO MAY ADOPT.

203

Where an only son becomes an outcast or renounces the
Hindu religion, his father will be entitled to adopt another
as his son (a). According to a text which is cited in the
Dayabhaga and which is ascribed to Apastamba by the
Viramitrodaya, to Sankha and Likhita by the Vivada Ratna-
kara and to Katyayana by Apararka, “Of one who is
excommunicated, the heritage, the oblation of food, and
libations of water, cease” (6). Since the Caste Disabilities
Removal Act XXI of 1850, the outcast son will not forfeit anv
legal right by loss of caste, but he will not retain the religious
capacity to perform the obsequial lites, and the father’s right
ds it stood under the Hindu law to make an adoption when
his son becomes an outcast is not taken away. Nor would
the existence of a son of the outcast son be a bar as the Act
does not protect him (c). Those who are treated in the
books as disqualified heirs stand on the same footing, for they
are all equally disqualified to perform religious ceremonies
and to offer oblations to their ancestors (d) . On the
doctrine of religious efficacy of sonship recently emphasised
by the Privy Council (e), where an only son is a patita or a
disqualified person according to the Smritis, the father will
be entitled to adopt. In Madras, it has been rightly held
that the existence of a son, who is not only disqualified from
inheritance but also incompetent to perform ceremonies is no
bar to an adoption by his father, dissenting from the contrary
view in a Bombay case (/). Both the cases however were
prior to the Hindu Inheritance (Removal of Disabilities)
Act (XII of 1928), according to which only a congenital lunatic
and an idiot are still excluded from inheritance and partition.
The Act does not affect the law of the Dayabhaga School, nor
does it apply to religious offices or to trusteeship of religious
or charitable endowments. It does not certainly remove the
religious disability of disqualified persons to perform funeral

(а) It IS suggested by Mr. Sutherland and assented to by Mr. Mac*
Naghten, that if the son, natural or adopted, became an outcast, and
therefore unable to perform the necessary funeral rites, an adopti3n
would be lawful; and a practice to that effect is stated to exist in
Bombay — 2 W. MacN., 200; Steele, 42, 181.

(б) Daya. Bh V, 3, Vivada Ratnakara, p. 19.

(c) Mitar Sen Singh v. Maqhul Hasan Khan 0930) 57 I.A., 313,
35 C.W.N., 89

(d) The disqualified persons are not entitled to perform the rites
prescribed by the Sruti and the Smriti. Vivada Chintamani, 242-243;
Vivada Ratnakara, 20; Viramitrodaya, Setlur’s ed., 464, Smriti-
chandrika, V, 6; Dat. Mima., II, 6, 2; Chose, H.L., Vol. I, 669, 670;
Sarkar, ‘Law of Adoption’, 196.

(e) Aniarendra v. Sanatan (1933) 60 I. A., 242, 12 Pat., 642.

(/) Nagammal v. Sankarappa (1931) 54 Mad., 5*^6; dissenting
from Bharmappa v. Ujiangouda (1922) 46 Bom., 455.

Adoption
where son is
disqualified.

204

LAW OF ADOPTION.

[chap. V.

Adoption bv

disqualified

per<^on

rites or to offer pindas. Where an only son is disqualified
under the Dayabhaga law or is a congenital lunatic or an idiot
in a case governed by the Mitakshaia law, and an adoption is
made, the adopted son will have the usual rights. Where
however an adoption is made by a father whose son’s disquali-
fi( ation IS now removed by the Act (XII of 1928), the
adopted son i\ill not be entitled to inherit or to share on
fiartition and his adoption for all but religious purposes will
be invalid Whether he will be entitled to maintenance is
open to doubt.

S 142 Wheie a peison is disqualified fiom inheriting by
an\ personal disability such as impoteney, lunacy, idiocy,
leprosy, blindness, by being lame oi dumb or the like, only
his aurasa son is entitled to his share (g). The Mitakshara
in IL X. n savs that ‘the specific mention of legitimate issue
and offspnng of the wife is intended to foibid the adoption of
other sons’ ih) The Dayabhaga also lecogn^es as sons of dis-
(jualified pel sons only the aurasa or kshetraja sons (r). The
Dattakachandiika ( /) says that a son adopted b) a disqualified
person has no right to the estate of his paternal giandfathei
but to maintenance only While admitting that a son adopted
by a disqualified person cannot have the full status of a
dattaka son, it allows adoption of a qualified characlei purely
for religious purposes But the Mitakshara expressly and
the Dayabhaga impliedly give nothing to the adopted son of a
disqualified person A disqualified person therefore cannot
make a valid adoption The decision in Raniabai v. Harna-
hai [k) proceeds upon the footing that leprosy of a viiulenl
and disgusting type would disentitle one to make an adoption
In Sukumari Bewa v. Ananta (/), it was hejd that, in Bengal
a Siidra leper can adopt a son, having the full rights of a

(g) Seiachetumbra v Hanibutty Mad. Dec. of 1857, 210 This
incapacity is not recognised by the custom of Pondicherry; Sorg H.L.,
120, ( o ( on , 375 In the Piiniab a man who is blind, impotent, or
lame can adopt, though the Brahmans deny the right of one who was
always impotent Punjab Customary Law, II, 154.

{h) (yolapcbaiidia Sarkar Sastri questions the correctness of
Colebrookc’s trans and gives his own literal translation* “The specific
mention of aurasa and kshetraja is intended to exclude other sons
from inheritance” His rendering necessarily implies the prohibition
of the dattaka son, who, if his adoption is valid, must take the share
Sarkar, Adoption, 2nd edn , 202.

(0 Dayabhaga, V, 19.

(/) Dattaka Chandrika, VI, 1.

(A:) (1924) 51 I.A., 177; 48 Bom., 363; see also Bhagahan Rama’
nuja Das v. Ram Praparna (1895) 22 I.A., 94, 105; 22 Cal., 843, 858

(l) (1901)* 28 Cal, 168

PARAS. 142 & 143. J ADOPTION BY MINOR.

20S

dattaka because no ceremonies are required. It overlooks
the rules in the Mitakshara and the Dayabhaga which negative
an adoption by a disqualified person, though the disability to
participate in the religious ceremony of adoption may not be
a ground of objection. As regards congenital lunatics and
idiots, they continue to be still disqualified persons in all
schools of Hindu law and cannot adopt. But in the case of
persons whose disability has been removed by the Act of
1928, and who are themselves entitled to inherit, adoption
can be validly made by them as the reason for the prohibition
no longer exists.

§ 143. It is well settled that a person who is a mitiot
under the Indian Majority Act can adopt or authorise his
widow to adopt when he has attained the age of discretion
according to Hindu law (m I . In Jamoona v. Bamasoon-
dan (/i), the Privy Council held that the age of 15 or 16
was, according to^the law prevalent in Bengal, to be regarded
as the age of discretion. It corresponds to the age of majority
which is fixed by the Dayabhaga School at the completion
of the fifteenth year (o). According to the Mitakshara
School, It is the completion of the sixteenth year ( p ) . It may
be the same for the Mitakshara School also, as it is quite
possible to interpiet the relevant rule as meaning the comple-
tion of the fifteenth year (q). The age of discretion cannot
certainly be fixed earlier than the completion of the fourteenth
year since the Legislature now treats a girl below 14 as a
child for purposes of marriage. The age of discretion must
be fixed by the law and cannot be treated as a question of
fact in each case.

There can be little doubt that Hindu law never contemplat-
ed a person below the age of majority as having attained the
age of discretion. Narada says: “A youth who, though inde-
pendent, has not yet arrived at years of discretion, is not

(m) Jamoona v. Bamasoondan (1876) 3, I.A., 72, 1 Cal, 289,
followed by the Privy Council in Amarendra v. Sanatan (1933) 60 I \
242, 260, 12 Pat., 642, 660-663; Rajendra v. Saroda 15 W R., 548.
Patel Vandravan v. Patel Manilal Chunilal (1891) 15 Bom., 565
Sattiraju v. V enkataswami (1917) 40 Mad., 925, 929, explaining the
dictum in Ranganayakamma v. Alwar Chetti (1890) 13 Mad., 214,
Basappa v. Sidramappa (1919) 43 Bom., 481.

in) (1876) 3 I.A , 72, 1 Cal., 289, supra

(o) Dig., I, 202; Mothoor Mohan v. Soorendro (1876) I Cal., 108
114, F.B.

(p) Vyav. Chand., I, 590; Ramesh Chandra Das v Maharaja
Birendra (1924) 29 C.W.N., 287, 289, 1 Stra.H.L., 72.

(q) Per Sadasivier, J., in 40 Mad., 925, 929 supra %

Adoption bv
a minor.

Age of
discretion

206

LAW 6F adoption.

[chap. V,

By a lunatic

By wardts.

capable of contracting valid debts” {r). As adoption is an
important act and as a widow must be able to judge of its
consequences, it would follow that the widow herself must
have attained the age of discretion, whether she adopts in her
own right, as in Bombay, or with the assent of kinsmen {s)
But It has been held that if she has been directed to adopt a
particular boy by her husband, then she could adopt even
though she was about twelve (t), if it is not shown that she
had not sufficient maturity of understanding to comprehend
the nature of the act. This view is open to the objection
that an adoption is always a matter of discretion on the part
of the widow, as she is not bound to make the adoption at all
or within a particular time, and the onus is also
wrongly placed Where an adoption is made by a person
who has not attained the age of discretion, it cannot be
subsequently ratified {u) On principle, an adoption made
by a person who, at the time, is of unsound mind, though not
a congenital lunatic, is altogether invalid and so it has been
held in a case in Madras (v) The wife of a lunatic cannot
adopt for him during his lifetime, even where his mother
consents on his behalf (iv)

The various Court of Wards Acts contain provisions
prohibiting disqualified proprietors from making an adoption
oi giving permissions to adopt without the consent of the Couit

(r) Narada, 1, 61 The Sanskrit word *'Praptavyavahara' has been
explained by the commentator Bhavaswamin in the light of Nar , I, 35
to mean the age of majority, le, the sixteenth year

( 5 ) In Murugeppa v. Kalawa (1920) 44 Bom, 327, it was held
that a widow of 12 yeart. cannot make a valid adoption. In Parvatava
V Fakirnaik (1922) 46 Bom., 307, adoption by a widow aged 12 years
and 6 months was held invalid. In Oudh the age of discretion is
16 years Mata Baksh v Ajodhia Baksh A.I R 1936 Oudh, 340

(/) Mondakini v Adinath (1891) 18 Cal., 69» see Sattiraju v.
V enkitaswami (1917) 40 Mad, 925, 931. (This decision apparently
follows s. 83 of the Indian Penal Code, but the age given for the
purpose of criminal law cannot be the standard for the purpose of
adoption which is more analogous to a contract or disposition of
property).

(u) Sattiraju v V enkitaswami (1917) 40 Mad., 925 (per Sadasivier,
J., 930, per Oldfield, J., 936-937) dissenting from Sri Raja Venkata
Narasimha Appa Row v Sri Raja Rangayya (1906) 29 Mad., 437; see
also Seshayyar v. Saraswati Ammal (1920) M.WN., 721

iv) Seshamma v. Padmanabha Rao (1917) 40 Mad., 660: It was
held that the fact that he was previously adjudicated a lunatic under
Act XXXV of 1858 was not conclusive as to his incapacity to adopt
and mav be rebutted by evidence. See also Tay ammal v. Seshachalla
(1865) '10 M.IA, 429, 434-5

(u;) Ramakrishna v. Lakshminarayan (1920) 22 Bom. L.R., 1181.

PARAS. 143 & 144.] ADOPTION BY WIDOW.

207

of Wards {x ) . Adoptions made in violation of the Court of
Wards Act are invalid (y) . The consent of the Government is
not necessary in the case of adoptions by Zemindars, Jaghirdars
or other landed proprietors, as was once supposed (z).

§ 144. An unchaste widow cannot adopt, even with the By unchaste
express authority of her husband, because her dissolute life widow,
entails a degradation which renders her unable to perform the
necessary ceremonies ( a ) . In Bombay, it has been held

that a Sudra widow, though unchaste, can make a valid
adoption (6). An untonsured widow has been held to be
competent to make a valid adoption (c).

Apart from the Hindu Widows’ Remarriage Act, 1856, a By a
Hindu widow on her remarriage loses her status as her remarried
husband’s widow for all purposes and has no longer any
spiritual or temporal ties with the family of her first husband.

She cannot therefore adopt a son to her first husband while
she IS the wife oGanother (d).

(jc) The Madras Court of Wards Act, 1902, s. 34 (1) c, Bengal
Act IX of 1879, s. 61; see Amarendra v. Sanatan (1933 ) 60 I. A., 242,
245, 12 Pat., 642, 646, U P. Act IV of 1912, s. 137. There is not in
Bombay, as elsewhere, any prohibition of adoption, made without the
sanction of the Court of Wards. Trevelyan on Minor‘., 432. Apparently
confirmation by the Court of Wards after the adoption may suffice
under Sec 34 of the Madras Act, compare Balasubrnhmanya v
Subbayya (1938) 65 1 A., 93, 42 C.W.N., 449.

(y) Jumoona v, Bamasoondan (1876) 3 I.A., 72, 1 Cal, 289,
Neelkaunt v. Anundmoyee S.D. of 1855, 218; Anundmoyee v. Sheeb-
chunder (1862) 9 M.I.A., 287. It has been held that the correspond-
ing provision in Bombay, Act II of 1863, s. 6, cl. 2, only applies as
between Government and the person claiming as adopted son, and
cannot be taken advantage of by third parlies for the purpose of in-
validating the adoption. V a!>udevanant v. Ramakrishna (1878) 2 Bom.,
529. See also Mata*Baksh v. Ajodhiya Bakbh A.I R. 1936 Oudh., 340.

( 2 ) Steele, 183; Bhasker Bhachajee v. Narro Ragoonath Bom. Sel.
Rep., 24; Raniachandra v. Nanaji (1871) 7 Bom. H.C. (A.C.J.), 26.
Narhar Govind v. Narayan (1877) 1 Bom., 607; Rangubai v. Bhagirthi-
bai (1878) 2 Bom., 377, Bell’s Empire in India, 127; Bell’s Indian
Policy, 10; Sir C Jackson’s Vindication of Lord Dalhousie, 9, see
Balaji Ramachandra v. Datta Ramachandra (1903) 27 Bom , 75. By
Lord Canning’s proclamation the right to adopt has been recognized
in the case of feudal chiefs and jaghirdars.

(а) Sayamalal v. Saudamini (1870) 5 B.L.R., 362, approved by
Mitter, J., in Kerry Kolitanee v. Mom Ram Kolita (1874) 13 B.L.R.,
1, 14, 19 W.R., 367.

(б) Basavant Mushoppa v. Mallappa (1921) 45 Bom., 459, 462.
(Where the decision in (1870) 5 B.L.R., 362 supra — a case of un-
chastity, not of the giver but of the person receiving in adoption —
was misunderstood). See also Keshav v. Govind (1885) 9 Bom., 94.

(c) Ravji Vinayakrav v. Lakshmibai (1887) 11 Bom., 381, 392;
Lakshmibai v. Ramachandra (1898) 22 Bom., S90; W. & B. 998.

(d) Panchappa v. Sanganbasawa (1900) 24 Bom., 89, 94; see
Fakirappa v. Savitrawa A.I.R. 1921 Bom., 1, 23 Bom. L.R., 482, F.B.,
485, 486, overruling Putlabai v. Mahadu (1^) 33 BoJi., 107.

[chap. V.

208

LAW OF ADOPTION.

During

Pollution.

Adoption
by wife.

Adoption
by widow

Mithila

Bengal.

The pollution of a person taking in adoption does not
render his act invalid. Pollution is only a bar to a religious
act and renders the religious ceremony inefficacious but gift
and acceptance are only secular acts which may be supple-
mented by datta homam^ where necessary, after the expiry of
the period of pollution (e) As amongst Sudras no religious
ceremony is necessary, an adoption during pollution is
valid (h

? 145. As an adoption is made solely to the husband
and for his benefit, he is competent to effect it without his
wife’s assent, and notwithstanding her dissent (g). For the
same reason, she can adopt to no one but her husband (A) ,
not even to herself (i) An adoption made to herself, except
where the Kntruna form is allowed, would be wholly
invalid {]) Noi can she ever adopt to her husband during
his lifetime, except with his assent (A:). Her competency to
adopt to him. after his death, whether with or without his
assent, is a point which has given rise fo four different
opinions, each of which is settled to be law in the piovmce
where it prevails “All the schools accept as authoritative
the text of Vasishtha, whuh savs, ‘Nor let a woman give or
accept a son unless with the assent of her lord’ But the
Mithila School apparently takes this to mean that the assent
of the husband must be given at the time of the adoption, and
therefore that a widow cannot receive a son in adoption,
according to the dattaka foim, at all(/). The Bengal
school interprets the text as requiiing an express permission

(e) Sanlappayya v Rangappayya (1895) 18 Mad., 397, Asitamohan
V Nirode Mohan (1916) 20 CWN, 901, see, also Ramalinga v
Sadasiva (1864) 9 MIA, 506, where it seems to have been assumed
that an adoption would be invalid if made during pollution

(/) Thangathanni v. Ramn Mudali (1882) 5 Mad, 358, there does
not appear to be a decision on this point m Ranganayaki v Alwar
Chetti (1890) 13 Mad , 214, where the invalidity of adoption turned
upon other grounds, ib , 222

(g) Dat. Mima, I, 22, Rungama v. Atchama (1846) 4 M I.A., 1;
Annapiirni Nachiar v Collector of Tinnevelly (1895) 18 Mad., 277, 283,
dfhrmed in (1900) 26 1 A , 240, 23 Mad , 1, (‘her consent is unneces-
sary’) , Sundaramma v. Venkatasubba Ayyar (1926) 49 Mad, 941, 946,
Sownfharapandian v Penaveeni Thevan 0933) 56 Mad, 759, FB, per
Ramesam, J , at 770, per Ananthakrishna Ayyar, J., at 778-779.

{h) Piiitu TmI V Parbati Kunwar (1915) 42 I A., 155, 37 All, 359.

(i) Chowdry Piidum v. Koer Oodey (1869) 12 MIA, 350, 356,
Narendra Nath v Dina Nath (1909) 36 Cal, 824

(/) (1869) 12 M.I.A., 350, 356 supra.

{k) Dat. Mima., I, 27, Narayana v. Nana (1870) 7 B.H.C. (A.C.J.).
153.

(/) Dat. Mima, I, §16, Vivada Chintamani, 74, 1 W. MacN., 95,
100; Jai Ram^y, Musan Dhami 5 S.D., 3.

PARA. 144.]

ADOPTION BY WIDOW.

209

given by the husband in his lifetime, but capable of taking
effect after his death (m) ; while the Mayukha, Kaustubha, and
other treatises which govern the Mahratta school, explain the Mahratta.
text away by saying, that it applies only to an adoption made
in the husband’s lifetime, and is not to be taken to restrict the
widow’s power to do that which the general law prescribes as
beneficial to her husband’s soul” (n). In the Benares school as Benares,
in the Bengal school, the law has been interpreted to allow
a widow to adopt only where she has her husband’s
authority (o). A fourth and intermediate view was established
by the Judicial Committee in the Ramnad case, viz., that in
Southern India the want of the husband’s assent may be Southern
supplied by that of his sapindas. The result is that, in the India,
case of an adoption by a widow, in Mithila, no consent is
sufficient; in Western India no consent is required; in Bengal
and Benares the husband’s assent is required; in Southern
India the consent either of the husband or of the sapindas is
sufficient. Amoxgst the Nambudri Brahmans of Malabar, as Nambudris.
in Western India, a widow can adopt without her husband’s
authority or kinsmen’s assent (p). In a case from Oudh,
the Judicial Committee held that a Hindu widow governed
by the Mitakshara who had not the authority of her husband
could adopt by virtue of a family custom {q) .

Among the Jains, except in the Madras Presidency (/), a Jams
son less widow can adopt a son to her husband without his

(m) 1 W. MacN., 91, 100; 2 W. MacN., 175, 182, 183; ]anki
Diheh V. Suda Shtyo 1 S.D., 197 (262) ; Mt Tara Munee v. Dev
Narayun 3 S.D., 387 (516).

(w) Per curiam. Collector of Madura v. Mootoo Ramalinga (1868)
12 MI. A., 397, 435, Mandlik, 463.

(o) Haiman v Koomar 2 Kn., 203; Chowdry Padum Singh v.
Oodey Singh (1869) 12 M.I.A., 350; per curiam. Collector of Madura
V. Mootoo Ramalinga (1868) 12 M.I.A., 397, 440; Tulshi Ram v.
Behan Lai (1890) 12 AIL, 328 F.B., where it was also held that the want
of proper authority could not be cured on the principle of factum
valet. Babu Mousing v Durgabai (1929) 53 Bom., 242; Biswanath v.
Jugal (1923) 50 I A, 179, 181; 45 M.L.J, 215; 28 C.W.N., 790, the
view of the Viramitrodaya, though its authority is next only to the
Mitakshara in the Benares School, that a widow can adopt with the
assent of her husband’s sapindas has not been accepted in that School,
Viramit., II, 2, 8; Setlur’s ed., 361-362.

(p) Vasudevan v. Secry of State (1888) 11 Mad., 157, 178, 187.

ig) (1923) 50 LA , 179 supra.

(r) Pena Ammani v. Krishnaswami (1893) 16 Mad., 182, Gettappa
V. Eramma (1927) 50 Mad., 228.

16

210

LAW OF ADOPTION.

[chap. V?

Punjab

Widow alone
can adopt
for husband

authority or the consent of his sapindas ( 5 ). In one case,
the Court said of this class: — “They differ particularly from
the Brahmanical Hindus in their conduct towards the dead,
omitting all obsequies after the corpse is burnt or buried.
They also regard the birth of a son as having no effect on the
future state of his progenitor, and consequently adoption is a
merely temporal arrangement, and has no spiritual
object” (t) . The widow’s right was affirmed even though the
family, originally Jain, was converted to Vaishnavism (u) .
In Madras, a Jam widow cannot adopt a son to her husband
without his authority or the consent of his sapindas (r).

In the Punjab the custom appears to vary. In Gurgaon
a widow can adopt without any consent, if she selects a son
from her husband’s agnates. She cannot adopt any one else
without the consent of such agnates. In Rohtak and several
other districts, the husband’s consent is necessary. In three
cases, the Punjab Courts set aside adoptions by a widow for
want of her husband’s permission, two of these cases being
from Lahore and Delhi respectively, {v) ,

§ 146 A husband can authorise only his widow to adopt
a son to him. He cannot give such an authority to any other
person, separately or jointly with his widow (zc) Where a
man authorised his widow and two others whom he had
appointed executors and trustees to make an adoption, both
the joint power and the adoption made in pursuance of it
were held to be invalid (a,). As the widow alone can adopt

(s) Govindnath Ray v Gulal Chand 5 SD, 276 (322) , Sheo Singh
V. Mt. Dakho 6 N.-W.P., 382, affd. (1879) 5 I A , 87, 1 All , 688,
iMkshmi Chand v Gatto Bai (1886) 8 All, 31^, Manik Chand v.
Jagat Sattam (1890) 17 Cal, 518, Harnabh v \tandil (1900) 27
Cal, 379, Manohar Lai v Banarsi Das (1907) 29 All, 495, Asharfi
Kiinwar v. Rup Chand (1908) 30 All., 197, on appeal Rupchand v.
Jambu Prasad (1910) 37 1 A , 93, 32 All, 247, Banarsi Das v. Sumat
Prasad A T.R. 1936 All, 641, where judicial notice was taken of Jain
usage and it was said that “Jains are governed by the Hindu law of
ddopiion, except in the matters of (1) authority for adoption, (2)
restrictions as to the adoptee’s qualification and (3) religious
ceremonies ”

(z) Per cm, 6 N -W P , 392, quoted with approval in Dhanraj v.
Sonibai (1925) 52 I A, 231, 242, 52 Cal, 482

(m) (1890) 17 (.al , 518 supra

{v) Punjab Customary Law, II, 154, 178, 205, III, 87, 89, 90.

(w) Amrito Lai v Siirnomoyi (1898) 25 Cal, 662, affd (1900)
27 I.A , 128, 27 Cal , 996. A direction by a testator to his son’s
widow to adopt might justify an adoption to the son, but not to the
testator. Karsandas \ Ladkavahu (1888) 12 Bom, 185 See Sathiraju
V. Venkataswami (1917) 40 Mad, 925, 927, Rajendra v. Gopal (1931)
57 I.A., 296, 303, 10 Pat , 187, 195.

(x) (1900)' 27 I A., 128 supra

PARA. 146 .]

ADOPTION BY WIDOW.

211

a son to her husband, she cannot delegate her authority to
any other person (y). The reason probably is that she is
looked upon not merely as his agent, but as the surviving half
of himself (2) , and, therefore, exercising an independent
discretion, which can neither be supplied, nor controlled, by
anyone else. It is no doubt upon the same principle, that
an express authority, or even direction, by a husband to his
widow to adopt, is, for all legal purposes, absolutely non-
existent until it is acted upon. She cannot be compelled to
act upon it unless, and until, she chooses to do so (a) . The
Court will not even recognise the authority to the extent of
making a declaration as to its validity (b). In the absence
of an express direction to the contrary, there is no limit of
time within which a widow may exercise the power conferied
upon her (c). Her right to her husband’s estate is not affected
by her refusal to adopt. Till she does act, her position
is exactly the same as it would be, if the authority had
never been givefl. She is entitled to be in possession of
her husband’s estate in her own right, and not as trustee for
any son to be adopted (e). If she is not the heir, she can
claim no greater right to interfere with the management of
the estate, or to control the persons in possession, than if
she had no authority. The only mode of giving it effect is
to act upon it (/). If a husband directs his widow to adopt

(y) Bhagwandas v Rajmal (1873) 10 Bom. H.C, 241; Lakshmi-
bat V. Ramnchandra (1898 ) 22 Bom., 590, 593.

( 2 ) Bnh, XXV, 11, Yarn, I, J56.

{a) Bamiindoss v. Mt, Tarinee (1858) 7 M.I.A., 169, 190; Uma
Sundari v. Sourobinee (1881) 7 Cal., 288; Mutasaddi Lai v. Kundan
Lai (1906) 33 I A , 55, 28 All , 377; Madana Mohana v, Purushotham
38 Mad., 1105 (1117J, Mittar Sain v. Data Ram A.I.R. 1926 All., 194,
Bhimrao v Mt Gangabai A.I.R. 1931 Nag., 74, 78. See Pratapsing
V. Agarsingji (1919) 46 I A, 97, 107, 43 Bom, 778, “There is no
power under the Hindu law to compel a widow to adopt.” Rawat
Shea Bahadur v Beni Bahadur (1927) 1 Luck., 403, 31 C.W.N , 438,
443, PC., V aradanarayana v Vengii Animal (1938) 47 M.L.W., 217.

(6) Mt Pearee v Mt Hurbunsee 19 W.R , 127. Sreemutty Raj-
(oomaree v. Nobutoomar 1 Boul., 137. A suit by a reversioner lies
lor a dedal at ion that an authority to adopt set up by a widow is
false; Babu Padmanabhudu v. Buchamma (1918) 35 M.LJ., 144,
Surayya v. Annapiirnamma (1919) 42 Mad., 699.

(r) Mutasaddi Lai v. Kundan Lai (1906) 33 I.A., 55, 28 All., 377;
in a Bengal case, an adoption made fifteen years after the husband’s
death was supported; and in some Bombay cases, the periods were
twenty, Iwenty-hve, fifty two, and even seventy-one years. Anon, 2
M. Dig., 18; Bhasker v. Narro Ragoonath Bom. Sel. Rep., 24; Brij-
bhookunjee v. Gokoolootsaojee 1 Bor., 181, (202) , Nimbalkar v.
Jayavantrav (1867) 4 Bom. H.C. (A.C.J.), 191; Giriowa v. Bhimaji
Raghunath (1885) 9 Bom., 58. In Brahmasastn v. Sumitramma (1934)
57 Mad., Ill, the adoption was made 24 years after the husband’s death,
(e) Bamunadoss v. Mt. Tarinee (1858) 7 M.I.A., 169.

(/) Mt. Subudra v. Goluknath 7 S.D., 143 (166).

Her

discretion

absolute.

No limit
of time.

212

L\W OF ADOPTION.

[chap. V,

Agreement
not to adopt.

Custom

prohibiting

adoption.

a particuldi bo}. she is under no obligation to submit to any
condition which the latter may attempt to impose (g).

§ 147. A widow cannot bind herself by an agreement
with the reversioneis or others not to adopt a son to her
husband. Such an agreement is void as contrary to public
policy, since the authority is given to her not for herself but
for her husband’s benefit (h) .

Where two undivided brothers contracted with each other
that, in the event of an indefinite failure of male issue in
the line of either of them, there should be no adoption in
one line to prevent the other from inheriting, it was held (i|
that the agieement could not bind the son of either, who
was then in existence, not to adopt or affect the rights of an
adopted son, on the ground that the agreement would alter
the law of descent and would be contrary to the principle in
the Tagore case (}), It was not decided whether such an
agreement would bind the parties themselve^ It is doubtful
whether a contract not to adopt can be valid any more than a
contract not to marry (A:). But an adoption in breach of it
must be consideied to be valid on the principle of factum valet,
whethei oi not the promisee will be entitled to damages The
Bombay High Court has held that a senior widow can
relinquish her right to adopt in favour of a junior
widow and bind heiself not to adopt (k^) A custom
prohibiting adoption will be valid, but it is very
difficult to establish such a negative usage!/). Where,
howevei a famih admittedly not Hindu by descent and origin
is governed by customs at variance with Hindu law and it is
not shown to be sufficiently Hinduised. a custom of adoption
has to be affirmatively made out irn) , Where a custom is

(g) Shaniavahoo v Dwarkadas (1888) 12 Bom, 202.

(A) Per Sir John Wallis, C J., and Seshagiri Ai>ar, J, in Ananga
Bhima Deo \ Kunja Bihan Deo (1919) 25 MLT, 204, 211, 216
Compare Assur Purushotam v Ratanbai (1889) 13 Bom , 56, where
the Court refused to restrain the adoption but did not decide the
point.

(t) Sunya Rau v Raja of Pittapur (1886) 13 I A , 97, 9 Mad , 499.
See also Sn Raja Rau Venkata Kumara Mahipati v Sri Raja Rau
Chellayammi Garu Q894) 17 Mad., 150, 155, Sadashiv Waman v.
Reshma 1 1938 J Bom , 84

(;) (1872) I A Sup Vol , 47

(k) Secs 23 and 26 of the Indian Contract Act See 7 Hals.,
para 224,

(Ai) Sadashiv Waman v Reshma [1938] Bom, 84

(/) Patel Vandravan v Patel Manilal (1892) 16 Bom, 470;
Fanindra Deb \. Rajesivan (1885) 12 I A , 72, 11 Cal., 463.

(m) 12 fA., 72 supra

PARAS. 147 & 148.] ADOPTION BY WIDOW.

215

alleged confining the line to natural-born issue alone, it must
be proved affirmatively and conclusively and not derived from
implications (n).

§ 148. No particular form of authority is required. It
may be a written or oral authority (o). The former must be
registered if it is not contained in a will (p). A will
giving authority to adopt now requires to be in writing and
executed and attested as required by the Indian Succession
Act (^). A will by a minor, who is incompetent to make a
testamentary disposition, containing an authority to adopt,
though invalid as a will can be valid as an authority to adopt
if it is registered (r). An authority to adopt given in a will
disposing of property is not revoked by a subsequent will
containing a disposition of property inconsistent with the
disposition in the prior will, when the prior will is not
expressly revoked ( 5 ).

The Madras feigh Court has in one case decided that a
husband’s authority need not be express, but can be implied
from his conduct and circumstances (^). The case itself
was one where the gift and acceptance of the boy had taken
place before the man’s death, but the widow performed the
datta homam afterwards. On that ground alone the adoption
would be valid (w). In such a case, the authority to be

(n) Verabhai v. Bai Hiraba (1903) 30 I.A , 234, 237, 27 Bom., 492.
The question whether such a custom would be valid was left open.
See also Pratapsingh v. Agarsing (1919) 46 I.A., 97, 106, 43 Bom.,
778, 791-792. ,

io) Mutsaddi Lai v. Kundan Lai (1906) 33 I A , 55, 57, 28 All,
377, 380.

(p) Sec. 17 (3) of the Registration Act XVI of 1908 lays down:

“Authorities to adopt a son, executed after the first day of January

1872 and not conferred by a will shall also be registered.” Where a
document called a will was construed to be not a will, but merely
an authority to adopt, it was required to be registered. Jagannatha

V. Kunja Behari (1921) 48 I.A., 482, 44 Mad., 733. See as to

authorities to adopt by domiciled subjects of Indian States, Venkatap-
payya v. Venkata Ranga Row (1920) 43 Mad., 288, 302.

(g) Secs. 57 and 63.

(r) Vijayaratnam v. Sudarsana (1925) 52 I.A., 305, 48 Mad., 614.

(5) V enkatanarayana v. Subbammal (1916) 43 I. A., 20, 39 Mad.,
107.

{i) Seetharamamma v. Suryanarayan (1926) 49 Mad., 969. See
Kumaraswami Sastri, J., in Maharaja of Kolhapur v. Sundaram Ayyar
(1925) 48 Mad., 1, 202. Contra Spencer, J., at p. 71.

(u) The Court followed the earlier decisions on this point, viz,
Venkata v. Subadra (1884) 7 Mad., 548; Subbarayar v. Subbammal
(1898) 21 Mad., 497.

Nature of
authority.

Implied

authority.

214

LAW OF ADOPTION

[chap. V,

Conditional

authority.

Must be

strictly

followed.

implied would be more an authority to perform datta hornaniy
than one to make an independent adoption. For, it could
hardly be said that if the boy adopted died, the widow could
make another adoption (v). In the most recent case, the
Privy Council while not laying down that the authority must
necessarily be express, observed that in order to constitute
an implied authority, there must be circumstantial evidence
of a cogent character. It was held that the association of the
wife in the act of adoption by the husband is not an implied
authority to her to make a second adoption (v^).

§ 149. An authorit) to adopt may be conditional In
other words it can be an authority to adopt upon the happen-
ing of a particular event, provided an adoption made when
the event happened would be legal. For instance, an authority
to a widow to adopt, in the event of a disagreement between
herself and a surviving son, would be invalid, because the
father himself could not adopt so long as the son lived ( n )
But an authority to adopt in the event of the death of a son
then living would be good, and so it would be if the author it\
were to adopt several sons in succession, piovided one was
not to be adopted till the other was dead (t).

S 150. The authority given must be strictly pursued,
and can neither be varied nor extended (y). For, the dutv
of a Hindu widow is to obey such directions as her husband
may have given as to the way in which she should exercise a
power of adoption to him (z), even though the act diiected
will be illegal when done, as for instance, that two widows

iv) See this case distinguished m Navaneethakrishna Marudappa
Thevar v. Collector of Tinnevelly (1935) 69 M.L T , 632, (1935)
MWN, 1001,

(iA) Balasuhrahmanya v Subbavva (1938) 65 1 \, 93 99, 42
CWN, 449

iiv) Mt Soliikna \ Rarndolal (1811) 1 SD, 324 (434), Gopee
Lall V Mt Chundraolee 19 WR, 12 (P.C.)

(;c) Bhoobun Moyee \ Ram Kishore (1865) 10 MIA, 279,
Jumoona v Barnasoonderai UH75) 3 I A, 72, 1 Cal. 289, Raja
Vellanki v Venkata Rama ((aintur rase) (1876) 4 I A , 1, 1 Mad, 174

(y) Choivdhry Piidiim \ Koer Ode\ (1869) 12 MIA, 350, 356,
Surendra Keshav v Diirgasundan (1892) 19 lA, 108, 122, 19 (al ,
513, 525, Rajendra Prasad v. Gopala Prasad (1930) 57 I A, 296, 303,
10 Pat, 187, 195, reversing (1928) 7 Pat, 245, Kalawati Devi v
Dharam Prakash (1933) 60 I A., 90, 55 All, 78, reversing (1928) 50
AIL, 885, Jagannath Rao v. Rambharosa (1933) 60 lA, 49, 71
M.L J , 309.

(z) Suabai V Bapu (1920) 47 I A , 202, 205, 47 Cal, 1012, 1018,
Yadao v Namdeo (1921) 48 I.A , 513, 522, 49 Cal, 1, 12, Suryanara-
yana v. Venkatek^amana (1906 ) 33 I. A., 145, 153, 29 Mad , 382, 388.

PARA. 150 .]

ADOPTION BY WIDOW.

215

should simultaneously adopt two boys (a) . The rules of
construction of authorities to adopt have been laid down by
the Judicial Committee in V enkatanarasimha Appa Rao
Parthasarathy Appa Rao (fc) and in Rajendra Prasad v.

Gopala Prasad (c). Apparently the construction will be Construction
more liberal where the paramount intention to be gathered of authority,
from the language of the will or the authority is religious
than when it is* secular (d). But both the objects viz,
to secure spiritual benefit to a man and to continue his
line are meritorious in the view of the Hindu law and both
are in consonance with the feelings known to prevail
throughout the Hindu community (e). Where an authority
to adopt is given by a husband, the presumption is strong
that he desires to be represented by an adopted son. The
Courts would not be astute to defeat an adoption not clearly
in excess of the power given by placing a narrow construc-
tion on the words of the authority (/). An authority to
adopt a son, in* the absence of any specific limitation, will,
when the general intention of the husband to be represented
by an adopted son is clear, empower the widow to make a
second or subsequent adoption on the death of the prior
adopted son (g). It is common for a husband authorising
an adoption to specify the child he wishes to be taken. The
authority will warrant the adoption of another child, unless
he said, “such a child and no other”. The presumption is
that he desired an adoption and by specifying the object
merely indicated a preference {h) , Of course where the
authority given by a husband is exhausted by one adoption,

(a) Stirendra Keshib v. Doorgasoondery (1892) 19 LA , 108, 122,
19 Cal., 513, 525.

(b) (1914) 41 I.A., 51, 71, 37 Mad., 199, 222.

(c) (1930) 57 I.A., 296 supra.

id) (1914) 41 LA, 51, 72 supra, (1930) 57 1 A., 296 302 supra

(e) (1906) 33 LA., 145, 154-155 supra.

(/) Bhagwat Koer v. Dhanukhdhan (1919) 46 LA., 259, 267,
47 Cal, 466, 479; Mutsaddi Lai v. Kundan Lai (1906) 33 LA., 55, 59,
28 All., 377.

(/§f) (1906) 33 LA., 145, 29 Mad., 382 supra, affirming (1903)
26 Mad., 681 and approving Surendra Nandan v. Sailaja Kant (1891)
18 Cal , 385, and the observations of Mitter, J., in Ram Soondur v.
Surbanee Dossee (1874) 22 W.R., 121, see also Dharum Kunwar v.
Bulwant Singh (1912) 39 LA., 142, 34 All., 398; Bhagwat v. Murari
Lall 15 C.W.N., 524.

(h) Lakshmibai v. Bajaji (1898) 22 Bom., 996; followed in (1903)
26 Mad., 681, 684 supra, V eeraperumall v. Narain PUlai 1 Strange’s
notes of cases, 78, see Sankaran Nair, J., in Chenga Reddy v. Vasudeva
Reddy (1915) 29 M.L.J., 144. In Sindigi Lingappa v. Sindigi Sidda
Basappa (1917) 32 M.L.J., 47, 52, the point was raised but not
decided.

216

LAW OF ADOPTION.

[chap. V,

there is nothing to prevent the widow from making another
adoption with the consent of the sapmdas unless a second
adoption is forbidden by her husband (i). Where a Hindu
authorised his widow to adopt a son if ‘‘no male or female
child should be born to him” but had a posthumous daughter,
an adoption made after the death of the latter was held
to be invalid ( / ) . Where the authority was to adopt one
of the sons of a man and the boy adopted was not then, in
existence but was born after the authority, the power was
construed to authorise the adoption (A;). But where a husband
directed that his wife should so far as possible adopt the
second son of his elder brother but that if he could not be
obtained, any other boy should be adopted with the advice of
trustees, and in consequence of ill-feeling between the widow
and the family of the boy to be adopted, she adopted with the
consent of the trustees her sister’s son, the adoption was
held to be invalid (/) . A direction to a widow to adopt a bov
along with a living son, which was illegal and could not be
carried out, did not authorise her to adopt after the death
of that son (m). But if the direction is to adopt either during
the lifetime or after the death of a son living, the authoritv to
adopt after the son’s death is severable and tan be validly
exercised (n) . An authority to adopt generally authoiises
the adoption of any person whose affiliation would be
legal (o). A direction by a testator that his widow should
adopt a son “with the good advice and opinion of the
manager,” whom he had appointed as a sort of agent, was held
only as a direction, and an adoption made without consulting
him was held to be valid ip). On the other hand, an authority
to adopt given by a husband to his wife to adopt a son with
his father’s permission was held to have cohie to an end on
the latter’s death and an adoption made by the widow after
that event, when she could not obtain his consent, was held

(z) Parasara Bhattar v. Rangaraja (1878) 2 Mad, 202.

(]) (1919) 46 LA., 259; 47 Cal, 466 supra

ik) (1906) 33 I A, 55; 28 All., 377 supra

(/) (1920) 47 I.A., 202 ; 47 Cal., 1012 supra

(m) Joychandrao v. Bhyrub S.D. of 1849, 41

(n) Kumud Bandhu v Ramesh Chandra (1919) 46 Cal, 749. The*
decision on this point is independent of the other questions discussed
relating to the termination of the power and the divesting of vested
estate

io) 1 Mad. Dec, 105

(p) Surendfa Nandan v. Sailaja Kant (1891) 18 Cal., 385.

PARAS. 150 & 151.]

SEVERAL WIDOWS.

217

to be bad (q). The Judicial Committee observed, “The rules
as to construction of powers prevailing in England apply to
the construction of authorities to adopt” (r). Where a man
by his will appointed five persons as trustees and authorised
his widow to adopt with their consent, an adoption by her
with the consent of four who proved the will, the fifth having
declined to do so, was held to be valid ( 5 ) . Where a husband
authorised his widow to adopt a boy chosen by his four
executors and one of them who managed the estate selected
the boy after consulting his co-executors who raised no
objection to the adoption, the adoption was held to be
valid (f).

§ 151. Where there are several widows, if a special
authority has been given to one of them to adopt, she, of
course, can act upon it without the assent of the others, and
she alone could act upon it (u). If the authority has been
given to the widows severally, the junior may adopt without
the consent of the senior, if the latter refuses to adopt (v) ,
In such a case, on the death of one of them, the surviving
widow can adopt (w) . In Bombay, where there are several
widows, the elder has the right to adopt even without the
consent of the junior widow, but the junior widow cannot
adopt without the consent of the elder, unless the latter is
leading an irregular life, which would wholly incapacitate
her (a:), or the junior widow has received a preferential
right to adopt from her husband (y). This view has been

(^) Rajendra Prasad v. Gopala Prasad (1930) 57 I.A., 296, 10
Pat., 187; Radha Madhab Jiu v. Rajendra Prasad (1932) 12 Pat., 727;
see also Janakiramayya v. Venkatalakshmamma (1931) M.W.N , 473

(r) (1930) 57 LA., 296, 303 supra,

( 5 ) Bal Gangadhar Tilak v. Shrinivas Pandit (1915) 42 I.A , 135.
39 Bom., 441.

(^) Rattan Lai v. Baij Nath [1938] Lah., 1 (PC.) reversing
(1933) 14 Lah, 345.

(m) 2 Stra.H.L., 91.

(v) Mondakini v. Adinath (1891) 18 Cal., 69.

{w) Sarada Prosad v. Rama Pati (1912) 17 C.W.N , 319, 16
C.L.J., 304.

{x) Steele, 48, 187, W. & B., 874, 893; Rakhmabai v. Radhabai
(1868) 5 Bom. H.C. (A.C.J.), 181, Padajirav v. Ramrav (1889) 13
Bom., 160; Amava v. Mahadgauda (1898) 22 Bom., 416; for a case
of the senior widow relinquishing her right to adopt in favour of the
junior widow, see Sadashiv Waman v. Reshma [1938] Bom., 84.

(y) Basappa v. Sidramappa (1919) 43 Bom., 481; In Dnyanu v.
Tanu (1920) 44 Bom., 508, it was held that where the husband died
in union with his father, an adoption made by a junior widow with
the consent of her father-in-law but without the consent of the senior
widow was valid. This decision can no longer be regarded as good
law, now that it is settled that a widow m Bombay can hdopt although

Several

widows.

21S

Sapmdas'
consent in
Southern
India

LAW OF ADOPTION [CHAP. V,

followed by the High Courts of Calcutta and Madras (z).
Where the junior widow adopts during the life time and
without the consent of the senior widow, the adoption is
not rendeied \alid in Southern India by the consent of the
sapindas ia) Where an express power of adoption was
given by will to two widows jointly, the Privy Council held
without determining whether the joint power was valid that
It could not be validly exercised by one widow after the
death of the othei ib) Where it is possible to constiue a
joint power of adoption as a powei to do that which the law^
allows and not to do something which was either illegal or
\erv unusual, that is the onlv construction proper to be
adopted {(') In Madias it has been held that where a Hindu
died leaving two widows to whom he gave a joint authority
to adopt, an adoption made by them both would be valid
though the adopted son would in law be the son only of the
senior widow who had the preferential right to adopt id). Anv
difficulty in detei mining whic.h of the two 'adopting widows
is to be tieated as the mothei and which the step-mother
cannot on piinciple affect the validity of the joint power oi
of an adoption of a son to their husband (e)

^ 152. In Southein India, a widow not having her
husband’s authority to adopt, may adopt a son with the assent
of his sapindas, as was finally settled by the judgment of
the Privy Council in the Ramnad case(f). That decision
was the starting-point of the whole law on the question
as to who are the kinsmen whose assent will supply the want of

he (lied undivided and she has not obtained ,the consent of her
husband's father or other (oparceners, Bhirnabai v Giirunatha Gouda
(1933) 60 I A, 25, 57 Bom, 157.

(z) Ranjit Lai v Bijoy Krishna (1912) 39 Cal., 582, affirming
Bijoy V. Ranjit (1911) 38 Cal, 694, Narayanaswami v. Mangammal
(1905) 28 Mad, 315

(a) Raja 1 enkatappa Nayanim Bahadur v Ranga Rao (1916)
39 Mad , 772, approving Kakerla Chukkamrna v Kakerla Punnamma
(1915) 28 MLJ, 72, Muthusami v Pulavaratal (1922) 45 Mad, 266,
Solaimalai Kone v Sakkammal (1934) 67 M L.J , 618.

ih) Venkata Narasimha Appa Row \ Parthasarathy Apjm Rou
(1914) 41 I A, 51, 37 Mad, 199, Lachhmi Prasad v Musnmmat
Parbati (1920) 42 All , 266

(c) Akhoy ( hunder v. Kalapahar (1886) 12 I A, 198, 12 Cal,
106, Ranjit Lai \ Bijoy Krishna (1912) 39 Cal, 582, 586

(d) Tiruvengalam v Biitchayya (1929) 52 Mad, 373, Yamuna v
Jamuna A I R. 1929 Nag , 211

(e) See also Lachhmi Prasad v Musammut Parbati (1920) 42 All,
266, where the validit> of the joint power was assumed

(/) Collector of Madura \ Mootoo Ramahnga (1868) 12 M I A
397, affirming '2 M HC, 206.

PARAS. 152 & 153.] ASSENT OF SAPINDAS.

219

husband’s authority. It is now settled that the requisite
authority in the case of an undivided family is to be sought
by the widow within that family. It is in the members of
that family that she must find her counsellors for the purpose.
She cannot at her will travel out of the undivided family and
seek the consent of the separated and remote kinsmen of her
husband (g) . The consent of her father-in-law as the head of
the family will be necessary and sufficient. If he is dead,
it was at first suggested that the consent of all her husband’s
brothers or other coparceners would probably be required (h ) .
But the assent even of the managing member of the undivided
family who is senior in age will be sufficient and be equivalent
to the assent of the family (i). The question may however
arise where the managing member does not give his consent.
Subramania Ayyar. J., expressed the view that as there was
no decided opinion in the Ramnad case, the consent of a
substantial majority would be sufficient (j). This is in
accordance with the later doctrine on the subject of consent
of kinsmen when the husband dies separate. There is however
the distinction that in the case of a joint family, adoption
would mean the introduction of a new co-parcener into the
joint family (/^). On principle it would seem she can adopt
with the assent of a substantial majority of the co-parceners in
the family. But it is fairly clear that even where the co-
parceners improperly refuse their assent, she will not be
entitled to adopt with the assent of her husband’s divided
kinsmen, as it would be introducing into the joint family a
CO- parcener against their will (A).

55 153. Wheie the husband dies a separated member, the
widow can adopt ^ son to him with the assent of his sapindas.
In the Ramnad case, the Judicial Committee observed: “The
assent of kinsmen seems to be lequired by reason of the
presumed incapacity of women for independence, rather than

(g) (1868) 12 397, 441-442 supra, Ramaswami lyen v.

Bhagati Ammal 8 Mad Jur., 58 (The Travancore case) ; Raghunadha
V. Brozo Kishore (1876) 3 I A., 154, 1 Mad, 69 (The Berhampore
case); Veera Basavaraju v. Balasuiya Prasada Rao (1918) 45 LA,
265, 41 Mad, 998, 1009.

(A) (1868) 12 MIA., 397, 441-442 supra

(i) Subrahmanyam v. Venkamma (1903) 26 Mad., 627. See also
‘Ganesh v. Gopala ( 1880 ) 7 I A., 173, 2 Mad., 270, where the assent

the managing member was assumed to be sufficient.

f/) Venhatakrishnamma v Annapuranamma (1900) 23 Mad, 486,
487-8.

(;1) After the Hindu Women’s Rights to Property Act, 1937, as
on her husband’s death the widow herself will take his interest, the
distinction perhaps loses something of its former importance.

(k) (1868) 12 M.I.A., 397, 441-442 supra.

Joint

Family.

Where
husband, a
separated
member.

220

LAW OF ADOPTION.

[chap. V,

Family

Council

Nearest

sapinda’«

consent.

the necessity of procuring the consent of all those whose
possible and reversionary interest in the estate would be
defeated by the adoption .... There should be such evidence
of the assent of kinsmen as suffices to show that the act is
done by the widow in the proper and bona fide performance
of a religious duty, and neither capriciously, nor from a
corrupt motive.” (/). Explaining this passage in Vellanki \.
Venkatarama, their Lordships observed: “There should be
such proof of assent on the part of the sapindas as should be
sufficient to support the inference that the adoption was made
by the widow, not from capricious or corrupt motives, or m
order to defeat the interest of this or that sapinda, but upon a
fair consideration, by what may be called a family council, of
the expediency of substituting an heir by adoption to the
deceased husband” (ni).

§ 154. Where the husband dies a separated member
leaving his father, the latter will be the '•widow’s natural
guardian and ‘venerable protector’. His authorisation
would be necessary and sufficient In his absence.

It IS not necessary to obtain the consent of every
sapinda, however remote (m^). “The consent required
IS that of a substantial majority of those agnates
nearest in relationship who are capable of forming an
intelligent and honest judgment on the matter” (n). The
consent of the nearest sapindas must be asked, and if it is not
asked, it is no excuse to say that they would certainly have
refused (o). For, ordinarily, the absence of consent on the
part of the nearest sapindas cannot be made good by the
authorization of distant relatives, whose interest in the well-
being of the widow or the spiritual welfarfc of the deceased,
or in the protection of the estate, is of a minute character,
and whose assent is more likely to be influenced by improper
motives ip).

(/) (1868) 12 MIA., 397, 442-443 supra

(m) (1877) 4 I.A., 1, 14, 1 Mad, 174, 190-191

(ml) (1868) 12 M.I.A., 397.

(n) Adusumilh Kristnayya v Adusumilli Lakshmipathi (1920) 47
I.A., 99, 104, 43 Mad., 650, 654.

(o) Venkamma v Subramaniam (1907) 34 I A . 22, 30 Mad, 50,
affg (1903) 26 Mad, 627, (1920) 47 I A., 99, 102, 43 Mad, 650, 654
supra

(p) Veerabasavaraju v Balasurya Prasada Rao (1918) 45 lA,
265, 41 Mad..'’998, (1920) 47 I A., 99, 43 Mad, 650, 654 supra

PARAS. 154 & 155.] ASSENT OF SAPINDAS.

221

The consent of a near sapinda who is incapable of forming
a judgment on the matter, such as a minor or a lunatic, is
neither sufficient nor necessary. So too, where the nearest
sapinda happens to be in a distant country, and it is impossi-
ble without great difficulty to obtain his consent, or where he
is a convict or suffering a term of imprisonment (q).

§ 155. Where a near sapinda is clearly proved to be Improper
actuated by corrupt or malicious motives, his dissent may be
disregarded (r). Adoption being a proper act, any refusal
on the part of a near sapinda from interested, impropei, oi
personal motives will justify a widow in adopting with the
assent of remoter sapindas(5). Where one of two neai
sapindas of equal degree improperly refuses, the assent of
the other alone is sufficient, even where he is the natural
father of the boy to be adopted (^). For, as was laid down
by the Privy Council in the most recent case, “the sapindas
are to be regarded as a family council (u), the natural
guardians of the widow, and the protectors of her
interest (v) . In giving or withholding their consent it i-^
their duty, in this capacity, to form an honest and intelligent
judgment on the advisability or otherwise of the proposed
adoption in, and with reference to, the widow’s branch of the
family” (w). Theiefore, when the majority of sapindas
are shown to have improperly refused, even the assent
of sapindas who aie in a minority will suffice. In Para-
sara v. Rangaiaja (;t) where a sapinda, without with-
holding his consent, coupled it with a condition that the
widow should adopt his son who, as he had himself falsely

(q) Knstnawa •\ Lakshmipathi (1920) 47 1 A , 99, 43 Mad., 650,
654.

(r) Adismilh Kristnayya v. Lakshmipathi (1920) 47 I A., 99,

43 Mad., 650, 654, Solaimalai v. Sokkammal (1934) 67 M.L.J., 618,
629.

(5) V enkatakrishnamma v Annapurnamma (1900) 23 Mad., 486,
Subrahmanyam v Venkamma (1903) 26 Mad., 627. 635; Venkata-
ramaraju v. Pappamma (1916) 39 Mad., 77, 27 M.L.J., 638.

(0 (1880) 2 Mad, 202 supra; Sri Krishnayya Rao v. Surya Ran
(1935) 69 M.L.J., 388, P.C.

(tt) Raja Vellanki \. Venkatarama (1876) 4 I A, 1, 1 Mad, 174
{Guntur case).

(v) 47 I A . 99, 43 Mad., 650 supra

(w) (1935) 69 MLJ, 388, 396 supra following Parasara v. Ranga

raja (1880) 2 Mad., 202, and the remarks of Viscount Cave in the
Adusumilli case, 47 I A., 99, 102. See also Murahari Brahma Sastri
V. Sumitramma (1934) 57 Mad., 411 (No meeting of the family council
IS necessary) and Han Ramayya v. V enkatachalapati (1936) 70

M.L.J., 619.

ix) (1880) 2 Mad, 202. ,

222

LAW OF ADOPTION

[chap. V,

Grounds of
refusal.

stated, had been given away in adoption, his conduct was
regarded as an improper refusal Explaining that case, the
Court said in Subrahmanyam v. Venkarnma, that there is
nothing improper in a sapinda proposing to give his assent
to the widow adopting his son, if such son be the nearest
sapinda, and refusing to give his assent to her adopting a
stranger or a distant sapinda, if there be no reasonable
objection to the adoption of his own son (y). It cannot
be said that this view is finally accepted (z) . It is however
quite in accordance with the recommendation in all the texts
that a near sapinda, if available, should be chosen for
adoption.

§ 156. On the authorities it is difficult to say on what
grounds a sapinda can validly refuse his assent. It is well
settled that a refusal cannot be justified on grounds of personal
loss or injury to the reversionary interest which may be
caused by the adoption (a) It would also seejn that he cannot
j'ustify his refusal on the ground that the widow has no
religious motive in making the adoption ib). Nor can he
justify his refusal on the ground that the proposed adoption
is too late or that it is not necessary or that the widow is likely
to enter into an ante-adoption agreement (c) Probably,
however, a refusal will be justified on the ground that the
widow IS misconducting herself. He (an certainly object to
her (hoice of the boy to be adopted on any proper grounds.
But the widow is not (ompelled in seeking the assent of the
sapinda to specify the boy, as ordinarily all the sapindas
are not likely to agree amongst themselves as to the
particular boy to be adopted The practical result of the
authorities therefore appears to be that a sapinda’s refusal to
an adoption can seldom be justified It is clear that any
evasion or undue delay in replying to her request on his part
will be tantamount to an improper refusal (d). Where all
the sapindas improperly refuse their assent, or where there are
no sapindas at all, she cannot adopt as she must have some

(y) (1904) 26 Mad, 627, 637, affirmed in (1908) 34 I A , 22, 30
Mad , 50

(z) See Venkatapathi v Punnamma (1915) M W.N , 236

{a) Venkataramaraju v Papamma (1917) 39 Mad, 77, Kudu-
kulla Kamayya Bhakta v Kodukulla China Sooranna (1934) 66
MLJ, 37.

(b) Hariramayya v. Venkatachalapathi (1936) 70 MLJ, 619

(c) Knshnayya Rao v Surya Rao (1935) 69 M.L J , 388 (PC.)

id) Murahan Brahma Sastri v Sumitramma (1934) 57 Mad, 411;
(1936) 70 MLJ., 619 supra

PARAS. 156 & 157.] ASSENt OF COGNATES.

223

authority. In one case (e) it has been held that when there
are no sapindas, the widow has an unrestricted power to
adopt. But the basis of the rule requiring the consent of
the sapindas is not that their existence is an inipediinenl, but
that the want of the husband's authority can only be supplied
by such consent. It follows therefore that if there are no
sapindas, she cannot make an adoption any more than she can
have absolute powers of alienation when there aie no
reversioners at allf/).

§ 157. The presumed incapacity of a woman to adopt
without the authority of her husband or the consent of his
sapindas does not necessarilv involve her incapacit\ to
authorise another widow to adopt. In the Ramnad case, it
was held that the assent of the mother-in-law along with that
of a samanodaka was sufficient to support an adoption (gl

Where there are agnates as well as cognates, it would seem
both on principle and authority that the consent of the
agnates is necessary and sufficient (/i). In the absenc^e of neai
agnates, the assent of cognates will of couise be sufficient (i) ,
As observed by the Judicial Committee in V eerabasavarajii v
Balasuryapiasada Row (y), ‘‘In the absence of authority from
her deceased husband a widow may adopt a son with the
assent of his male agriates'\ Again in Knshnayya v. Laksh-
mipali ik) their Lordships held, “The consent required is
that of a substantial majority of those agnates nearest in
relationship, who are capable of forming an intelligent and
honest judgment in the matter”. Ramesam, J., expresses the

ie) Patnaloo Appalswamy v. E Moosalaya (1934) 12 Rang., 22

(/) Balasubrahmanya v. Subbayya (1938) 65 I.A., 93, 99, 42
C.W.N., 449, (1934) 12 Rang, 22 supra is not good law. Compaie
Collector of Masulipatam v Cavaly Venkata (1859-61) 8 519.

and Vasudevan v. Secy of State (1885) 11 Mad., 157, 170.

(^r) (1868) 12 M.I.A , 397, 444-445. There were however circum-
stances in that case which placed the mother-in-law in a position of
special importance. In Raja Venkatappa v. Renga Rao (1916) 39
Mad., 772, 778, it was held that the senior widow is one of the kindiod
who should he consulted See also Maharajah of Kolhapur \
Sundaram (1925) 48 Mad., 1, 68, 204-205.

{h) Viswasundara v, Somasundara Row (1920) 43 Mad, 876

(consent of daughter's son unnecessary) , Brahma Sastn v.
Sumitramma (1934) 57 Mad, 411 (consent of step-daughter unneces-
sary), explaining Kesarsingh v. -Secy, of State (1926) 49 Mad., 652,
anci differing from the observations of one of the judges m Brahmay\a
V. Ratta^ya (1924) 20 M.L.W., 503.

(i) Kesarsingh v 5ecy. of State (1926) 49 Mad, 652, see abo
(1934) 57 Mad., 411 at p. 417 supra.

ij) (1918) 45 l.A, 265, 267, 41 Mad., 998, 1004.

(A) (1920) 47 I.A., 99, 102, 43 Mad., 650, 654. *

Consent of
females.

Of cognates.-

224

LAW OF ADOPTION.

[chap. V,

view in Brahmayya v. Rattayya dissenting from the decision
in V imasundara Row v. Somasundara Rao (/) that the consent
of the daughter’s son who is the nearest reversioner is neces-
sary and sufficient to validate an adoption even though there
are near agnates like the nephew and grandnephew (m). This
dictum is opposed to the observations of the Judicial Commit-
tee above cited which recognise the assent of agnates as the
primary requirement. In adoption the substitution of a son
for spiritual reasons is the essence of the thing and the conse-
quent devolution of property a mere accessory to it (n)
Adoption introduces a member primarily into an agnatic
family with reciprocal rights. The agnatic kindred would
appear to be the persons most concerned and the reversionary
interest of any cognate is neither the determining nor the
dominant factor (o). When a divided Hindu dies leaving his
brothers senior m age, his paternal urn les and granduncles,
his nephews and first cousins, and a daughter’s son who is the
nearest reversioner, to say that the daughter’s son is the
pel son whose consent is required appears to be opposed
to all notions of the religious and social importance of
the agnatic bond (p). The guardians of a widow are,
in the absence of her husband and her sons, pri-
marily their jnatis. The text of Yajnavalkya which
IS cited in the Vyavahara Mayukha on this point says.
“The father should protect (a woman while) a maiden
daughter, the husband when (she is) married, the sons in
(her) old age, in their absence their jnatis A woman has
no independence at any time”(^). Mr. Gharpure in his
translation of the Vyavahara Mayukha explains the term ^jnatis'
as meaning sagotra-sapindas or agnates, relying upon two
texts of Manu which use the term ^jnati^ in contrast with
handhavas or cognates (r) The correctness of the view that
^jnatis’ in Yajnavalkya, I, 85, means agnates is established

(/) (1920) 43 Mad, 876

( m ) ( 1924 ) 20 M L W , 503, A I R 1925 Mad , 67 , contra Jackson, J,

{n) Sn Raghunada v. Brozo Kishore (1876) 3 LA, 154, 1 Mad,
69, followed in Amarendra v. Sanatan (1933) 60 I. A., 242, 12 Pat , 642

(o) The Ramnad case, 12 M.I.A., 397, 444.

(p) A family council should presumably consist primarily of the
agnatic kindred The Hindu Law of Inheritance (Amendment) Act,
1929 which declares that a son’s daughter, daughter’s daughter, sistei
and sister’s son, are entitled in the order of succession hefoie near
agnates cannot make any difference on the question of whose assent
IS necessary

{q) I, 85

(/•) Gharpure, p 79, Manu III, 264, IX, 239, Vedic Index, I, 291,
Yajn , II, 149, Mit on Yajn , III, 3, Naraharayya’s trans , p 7,
Smritichandiika. p 196

PARA. 157.]

EFFECT OF ASSENT.

225

by verse I, 82, where in an allied context jnatis and bandhus
are contrasted ( 5 ). The observation of the Privy Council
in Balasubi ahmanja v. Subbayya that agnates are not the
only kinsmen whose assent need be sought, was made
with leference to the argument that in the absence of agnates,
no consent is lequiied to validate an adoption ( 5 ^), and
cannot suppoit the view that as between agnates and cognates,
the consent of the latlei is either necessary or alone sufTicient

The assent ol a son lo an adoption by his mother in the
event of his own death is sufficient to validate an adoption by
her after his dealh (/). The assent of a sapinda to adopt
‘any boy at any lime’ was held to be too general (u) especially
when it was not acted upon for nine years during which
ciicumstances had materially changed by the dealh of some
of the assenting and dissenting sapindas (i;) • The death of a
sapinda who gave his assent docs not pul an end to it and an
adoption made afteiwaids will be valid. A Full Bench of
the Madias Higli C.ourt observed, “The leservation that the
consent should be acted upon with icasonable promptitude
and that circumslanc cs should not have undergone a material
alteration would seem to meet the end m view, iiiespective of
the question whcthei the assenting sapinda was dead at the
time of the adoption or whethei those living then approved
It

( 5 ) The Pah shad vayam mentioned m the Mitak'shara on Yajn ,
I, 85, refers not to her husband’s agnates and cognates, hut to hei
husband’s agnates and to her own father s agnates This is the opinion
of Nilakantha also.* Narada, XIII, 28-29, is to the same effect

( 5 I) (1938) 65 I A, 93, 99, 42 C W N , 449

it) Annapurnamma v. Appayya (1929) 52 Mad, 620, F B., ovci
ruling Mann v. Subbarayar (1913) 36 Mad., 145.

(m) Siiryanarayana v V enhataramana (1903) 26 Mad , 681,

affirmed m (1906) 29 Mad, 382, 33 LA., 345, Brahmayya v. Rattayya
(1924) 20 MLW, 503. But an assent given by a «apinda to a Hindu
widow to adopt “any boy whom ‘^he may like either from among
agnates or from sagotrajas” is not too general and is valid, paitieulaily
when there is no delay in making the adoption after obtaining such
consent. Murahari Brahma Sastri v. Sumitramma (1934) 57 Mad , 411

(v) (1903) 26 Mad, 681, 685 supra, (1924) 20 MLW, 503 supra

(w) Annapurnamma v. Appayya (1929) 52 Mad., 620, FB.,

Suryanarayana v. Ramadoss (1918) 41 Mad, 604, Ammanna v

Satyanarayana (1926) 49 Mad, 636; Brahmayya v. Rattayya (1924)
20 MLW., 503. In Krishnnyyq v Lakshmipathi (1920) 47 I.A , 99,
43 Mad , 650, their Lordships refrained from expressing anv opinion
on the question.

17

Effect of
death of
assenting
sapinda

226

LAW OF ADOPTION

[chap. V,

Revocation of

sapinda’s

consent.

§ 158. When a sapinda gives his considered assent, he can-
not arbitrarily and capriciously withdraw it (x) . But it would
seem on principle that he should have the right to withdraw
his consent on proper and clear grounds as where a material
change in the circumstances ol the family has taken place
or when it is satisfactorily proved that the consent was given
on a material misrepresentation (y ) .

Conscious
exercise of
discretion.

§ 159. The assent of a sapinda to an adoption should be
one given by him in the exercise of his independent discretion
as to whether the adoption should or should not be made by
a widow not having her husband’s authority and therefore any
consent obtained by a widow upon a representation that she
had the authoiity of her husband to adopt, when no such
authority was in fact given, would be ineffective (z). It
would be otheiwise if the sapinda gave his assent with the
knowledge that the authoiity was false as there would be no
ground in such a case foi inferiing that he vj^as influenced by
the repicsentation (a).

Corrupt

consent

invalid.

§ 160. Where the consent of a sapinda is pui chased (6) or
IS given from coriupt or interested motives (c) or if his decision
can be shown to have been procured by liaud, such consent
will not validate an adoption. In Snnitasa v. Rangasami (rf),
the court held that wlicic an adoption was made by the widow
of one of three undivided brolhcis, the laLlei’s assent procured
by an arrangement with them that the adopted son should not
be entitled to ins adoptive falhei’s share in the joint family
propel ty but only to the adoptive mothei’s piopeity, was a
valid assent sulhcicnt to suppoit the adoption. llie reason
assigned that the sapindas piotecled themselves from loss and

(t) Sivasuryanarayana Chetty v. Audinarayaiia Chetty [1937]
Mad , 347, F.B., appiovmg Suryanarayana v Ramadoss (1918) 41
Mad., 604.

(>) (1918) 41 Mad, 604 supra

( 2 ) Ganesa Ratnamicr v. Gopala Ratnamaiyar (1880) 7 I A., 173,
2 Mad, 270, V cnkatalakshmamma v Narasayya (1885) 8 Mad., 545,
Venkamma v. Subramaniam (1907) 34 LA., 22, 30 Mad, 50, affiimmg
(1903) 26 Mad, 627, (1876) 3 lA, 154, 1 Mad., 69 Ai/pra.

(а) (1903) 26 Mad, 627, 635 supra; Han Ramayya v Venkata^
chalapati (1936) 70 MLJ, 619, 623.

(б) (1868) 12 MI A, 397, 443 supra, (1877) 4 LA, 1, 12, 1 Mad.,
174 supra. Rami Reddi v. Rangamma (1901) 11 M.L J , 20, Danakoti
Ammal v. Balasundara Mudaliar (1913) 36 Mad., 19, Murugappa v.
Nagappa (1906) 29 Mad., 161, 164, Brahmayya v. Rattayya (1924)
20 M L.W., 503, 516.

(c) (1880) 7 LA., 173, 2 Mad., 270, supra.

(d) (1907) "30 Mad., 450.

PARAS. 160-161.] WtDOW IN WESTERN INDIA.

SO gained nothing by the adoption does not seem to be correct ;
for, the adopted son would be entitled to his father’s share in
the family property* It can only be a case of a purchased
consent where the sapinda agrees to give his assent to an
adoption in consideration of the son to be adopted foregoing
his share in the family property. Apparently the Court
thought that the arrangement would bind the adopted son. But
as was pointed out by the Judicial Committee in the Ramnad
case, “The rights of an adopted son are not prejudiced by any
unauthorized alienation by the widow which precedes the
adoption which she makes

§ 161. In Western India the widow’s power of adoption Western
is even greater than in Southern India. Niiakantha, com- India,
menting on the text of Vasishtha and explaining it
in the light of the texts of Yajnavalkya and Katya-

yana, arrives at the conclusion that a widow has authority
to adopt even jvithout the permission of her husband (e).

It has always been held in Bombay that where her

husband died a sepaiated member, a widow may adopt
a son to him without his authority and without the consent
of his kinsmen (/). But wheie the husband died a

member of an undivided family, the Bombay High Court held
that she could not adopt without his authority or the consent
of her father-in-law or the consent of her husband’s co-
parceners (g) . But this distinction has been swept away by
three decisions of the Privy Council and it is now settled that
a widow governed by the Maharashtra School of law does not
in any case require either her husband’s permission or the

(di) (1868) 12*M.I.A., 397, 443.

(e) V. May., IV, 5. 17, 18.

(/) Rakhmabai v. Radhahai (1868) 5 Bom. H.C. (A.C.J.), 181 Niia-
kantha allows the widow to adopt with the assent of her father-in-la'v^, or
in his absence, with the assent of the jnatis and recognises that she is
dependent on sons, etc. In the case of the widow, Niiakantha substi-
tutes for the command of the husband the consent of kinsmen Warayan
Babaji v. Nana Manohar (1870) 7 Bom. H.C. (A.C.J.), 153, 1731.
The rule that a widow does not require even the sapindas’ assent is
not to be found in the Mayukha. The Court in Rakhmabai's case
followed Borro dalle’s translation ’*the command of any otljier person,
not herein mentioned, is nowhere declared requisite” (IV, V, 18) which
is incorrect, and it is not in the original or in Mr. Mandlik’s or
Mr. Gharpure’s translation. The correct translation is, “it is not a
new rule laid down (without prior authority),” (Mandlik, p. 57).
The Court in 5 Bom. H.C. apparently based its decision upon prior
decisions based on the opinions of pandits some of whom appear to
have thought that jnatis meant *caste* which would be too general.

(g) Ramji v. Ghamau (1882) 6 Bom., 498, (F.B.) ; Dinkar Sita-
rama v. Ganesh Skwram, ib., 505 (F.B.) ; hhwar Dadu v. Gajabai
(1925) 50 Bom., 468 (F.B.).

[chap V,

228

LAW OF ADOPTION.

assent of her father-in-law or other kindred, whether her
husband died a member of an undivided family or a separated
mcmlier or whether his estate was vested in her or not ih).
Where a widow is entitled to make an adoption b\ the law
of the Dravida School or by that of the Mavukha Srhool, her
power to adopt is co-extensive with that of her husband (z)

Express <)i § 162 A widow hovve\ei cannot adopt undei the law

implied (Mther of the Diavida School or of the Maharashtra School

prohibition i i i i i i i . i*

when her husband has exptessl) (j) or by necessary implica-
tion (k) prohibited an adoption by her. For, the widow’s
power to adopt proceeds upon the assumption that hi'5 assent
to this meiitoiious act is to lie implied wherevei he has not
loibidden it The prohibition can be implied fiom his dis-
position of piop(‘ily oi from other ciicumstances such as
would l(‘ad necessatilv to the conclusion that he intended to
piohibit it ( / )

Whelhei
invalid
adoption
bars second
adoption

163 In Bombay it was held in one c^se that a widow
( aruiot adopt a son dining the lifetime of a son
adojilod l)v her husband, though that adoption nia>
be invalid!///) following this decision it was held in
another case that she cannot dispute the validity of the

(h) \ adao v Nanuleo (1921) 48 I A, 513, 49 Cal, 1, Bhimabai

V Curiinathaqnuda (19.)1) 60 1 A, 25, 57 Bom, 157, ovciiiilmg the
decisions nti d in note (^) above. Vijaybingji \ Shivsingji (1935)
62 I A, 161, 59 Bom, 360

(/) Balusii Cm nhngasivaim \ Bulusu RaiiKdaksfumimma (1899)
26 I \ , 111 128, 22 Mad, 398, 408, 1 >«s (JiimanUd \ I }(/s Raw
(handia (1900) 21 Bom, 367 (FB), di'-M nlirijr fioni Lakshjuappa

V Rumappa (J875) 12 Bom HC, 364 »

(;) Ba\ahai \ Bala I enkutedi (1870) 7 Bom 11 C Appx , 1

(A) i.oUt'Ltoi of Madura v Moottoo Rnmulinga (1868) 12 MIA,
397, 443, \adao v Nanuleo (1921) 48 1 A , 513, 523, 49 Cal, 1, 11,
Copal v Vishnu (J899) 23 Bom 250, 256, Lakshmibai v Sarasvatibai
(1899) 23 Bom, 789, 796. Malgauda Paragauda v Babaji Dattu
(1913) 37 Bom, 107, Sitabai v Covindrao (1927) 51 Bom, 217
(Refusal })y luisliand to adopt does not implicdlv prohibit an adoption
by widow), J ithagoiida v Secy of State AIK 1932 Bom, 442, 34
Bom LK, 818. where the lanjnlajre ot express piohibition was dis
regarded as not covering walan property, a verv doubtful case
Muthusuami v Pidavaratal (1922) 45 Mad, 266, (No inference ot
implied prohibition from the fart that husband and wife lived separate
during covcrtuu ) , see also Knshnarnma v Lakshniinnrayana AIR
1928 Mad, 271, Solaimalai Rone v Sukkammal (1934) 67 MLJ
618, 630 (the mere t‘\i‘>lence of rlaughter’s von is no implied prohi
bition) .

(/) (1868) 12 MIA, 397, 143 supra

im) Bhati v Narasagouda (1922) 46 Bom, 400 affirming Bhiijan
gouda V Rc//>//* (1920) 41 Bom, 627

PARAS. 163-164.]

widow’s motives

229

adoption made by her husband (n). There is nothmji; peculiar
in the law of the Bombay School in support of cither view
The ground of decision was that as the husband made an
adoption, it was a prohibition of an adoption, by the widow,
of another son during the life of the son adopted by him. A
valid adoption by the husband does not operate as a piohihi-
tion of any second adoption by the widow; but she cannot
adopt a son because there is already a son in existence Where
the adoption by the husband is invalid, he dies soilless and
the widow is therefore entitled to adopt a son to him A man
intends oi must be presumed to intend a valid adoption and in
neither of the Bombav cases was it suggested that the husband
made the adoption ivith the knowledge that it was invalid
The view of the Bombay High Court ptoceeds on the
assumption that a son whose adoption is invalid has
in some dcgice the status or lights of an adopted
son. The son invalidly adopted by the husband does
not claim thiouj^h the widow and if he is in possession for
twelve years, his title is perfected and the property would go
to his heirs in his natural family on his death To turn an
adoption, which ex-hypothesi is invalid, into either a prohibi-
tion to adopt or into a partially valid adoption which cannot
be set aside m a suit by the widow or by a son validlv adopted
by her, is clearly opposed to piinciple.

§ 164. It cannot he said to be finally settled by the
highest tribunal, that the motives oi a widow who adopts a
son to her husband are inimateiial The Privy Council
obscived in an early case that “it would be very dangeious
to introduce into the eonsideiation of these cases of adoption
nice questions as, to the particular motives operating on the
mind of the widow” (o) In the most recent case it was said.
“Their Lordships doubt if wheie the consent oi a sapinda has
been obtained the motive of the adopting widow is rele-
vant” (p). In Vijaysingji Chafrasinji v. Shivsangji, theii
Lordships sav, “There is no evidence to prove any impioper
motive, and if the adoption causes haim to the plaintiff, it
neveitheless confers spiritual benefit upon the husband” (/d).

(n) Chirnabai v Mallappa (1922) 46 Bom., 946 See Radha
Hnmbirrao v. Dinkanao A.I.R 1937 Bom, 208, 39 Bom LB, 147.
where it was held that she could make a second adoption only when the
first was declared by a court as invalid.

(o) Vellanki v. Venkata Rama (1876) 4 LA, 1, 14, 1 Mad., 174,
187.

(p) Sri Knshnayya Roiv v. Surya Rao (1935) 69 M.L.J., 388, P.C.,
40 C.W.N., 1, A.I.R. 1935 P.C. 190.

(pi) (1935) 62 I.A., 161, 165, 59 Bom., 360, 365

Widow’s

motives

230

LAW OF ADOPTION.

[chap. V,

In Bombay it was settled by a Full Bench that, inasmuch as
the adoption procured for her husband all the religious
benefits which he could have desired, any discussion of
her motives is irrelevant {q) . In Madras the expressions of
judicial opinion before Krishnayya Row v. Surya Rao (/>)
were in conflict (r). But it is fairly clear that after the
doubt expressed by the Privy Council in the recent case (p),
a widow’s motives as in Bombay will as a rule be
irrelevant (5). As an adoption is a proper act, it
should ordinarily be piesumed that it is made bona
fide and that the widow acts from proper motives (/), When
sapindas have given valid assent to an adoption, Courts
are bound to presume that the act is done by a widow in
‘‘the proper and bona fide perfoimance of a religious duty
and neither capriciously nor from a coniipt motive” {u) ,
There does not therefore appear to be any difficulty in
reconciling the observations in the Ramnad (u) and Bet-
hampore cases (v), reiterated in V eerabasavaru]u v. Balasurya
Prasada Row {w) and in Kristnayya v. Lakshmipati (^)
with the observations in the Guntur case (t), as to the danger
of introducing into cases of adoption by the widow, the con-
sideration of questions of motives. But there may well
be exceptional cases where an adoption is made on foot of
arrangements entered into so clearlv for her personal gain
that it will be the duty of the Courts to set it aside as a fraud
upon the power which the law gives her for the fulfilment of

iq) Ramachandra Bhagnvan v Mulgi Nanahhai (1898) 22 Bom.,
558, FB, Mahablebhivar v Diirgabai (1898) 22 Bom, 199, Sitabai
V. Goiindrao (1927) 51 Bom, 217. 200, Banarsi Das v Siimat Prasad
AIR 1936 All, 641 630, see also Raja Makund v. Sn Jagannath

(1923) 2 Pat., 469, 4B5 6

(r) In Annapurnamma v Appasra Sastri (1929) 52 Mad., 620, 637,
FB, a Full Bench of the Madras High Court expressed the view that
“if the evidence hearing on con^^ent lea ’s to the conclusion that the
motive which actuated the widow in making the adoption was to
defeat the reversionary interest of the sapindas then the adoption
would necessarilv he invalid** Mangawma v Ramanamma (1935)
69 ML.l. 602, Kandaswaim Goitnder v Chinnawmal AIR 1933 Mad,
540, 37 M L W . 729 But see Kumaraswami Sastn, J , in 51 Mad ,
893, FB, 914 915 and Teckson, J, m Miirahan Brahma Sastn v.
Sumitramma (1934) 57 Mad, 411, 426.

( 5 ) See Han Ramayya v. V enkatachalapati (1936) 70 M.L,J., 619,
623.

(^) The Guntur case (1876) 4 I.A., 1, 1 Mad., 174,

(tt) (1868) 12 M.IA, 397, 444 supra.

(v) 3 T.A.. 154, 1 Mad., 69.

(w) (1918) 45 I.A.. 265, 41 Mad , 998.

(x) (1920) 47 I.A., 99, 43 Mad., 650.

PARAS. 164-165.] SUCCESSIVE ADOPTIONS.

231

a religious duty (y). This question is expressly reseived by
the judgment of the Judicial Committee in the recent case (y^) .

But in whatever measure it may be open to the Courts to
canvass in exceptional cases the motives of a widow in making
an adoption, it would seem on principle that a sapinda whose
consent is sought is entitled and bound to scrutinise her
motives or the objects of the adoption. This is the very
foundation of the rule which requires the consent of the
sapindas. “The assent is required for the purpose of
supporting the inference that the adoption was made by the
widow, not from capricious or corrupt motives” ( 2 ), as was
reiterated by the Privy Council in two recent cases (a) , endors-
ing the observation in the Berhampore case which stressed the
great social objections to make the succession of property
dependent upon the caprice of a widow and to the duty of
the Courts to keep the power strictly within the limits which

the law has assigned to it (6).

•

§ 165. A widow’s power of adoption extends to making Successive
successive adoptions (c). Where, as in Bombay, she does not adoptions,
require the authority of her husband or the consent of his
sapindas, she can adopt a son on the death of a son previously
adopted. Where she can adopt only with the authority of
her husband, she has the same power to make successive
adoptions, if the husband’s authority is on its construction
unrestricted. Where, as in Madras, she can adopt with the con-
sent of sapindas in the absence of her husband’s authority, or
where his authority was not general, her power of adoption
is the same when duly authorised.

(y) See Shri Sitaram v. Harihar (1911) 35 Bom, 169, where the
Court observed, “that object is likely to be frustrated, if she is
induced to adopt a boy out of greed for money and pecuniary benefit
to herself. If she is so induced, the money paid to her is a bribe,
which is condemned by all Smriti writers as an illegal payment.”

(yl) Referring to the dictum of Kumaraswami Sastri, J., that even
if it was shown that a widow wanted to get a personal benefit foi
herself, the adoption roiild not be set aside on that ground, it was
said; “Their Lordships do not find it necessaiy to decide this import-
ant question in the present case, but they think that this dictum of
the learned Judge may require serious consideration on some future
occasion”: (1935) 69 Mad LJ, 388, 399-400 (PC.) supra

(z) The Guntur case (1876) 4 I.A., 1, 1 Mad , 174.

(а) (1918) 45 LA., 265, 41 Mad., 998; (1920) 47 I.A., 99, 43
Mad., 650.

(б) (1876) 1 Mad., 69, 3 LA., 154.

(c) Ram Soonder v. Surhanee Dassee 22 W.R., 121, approved in
Surycpiarayana v. V enkataramana (1906) 33 LA., 145, 29 Mad., 382-

[chap. V,

232

LAW OF ADOPTION.

When

widow’s

power

becomes

incapable

of being

exercised

Bhoohun

Moyee's

case

§ 166. A question of great impoitance is: can a widow
exercise a power of adoption at any time duiing her life
irrespective of any devolution of pioperty or changes in the
family, or other circumstances'^ The Hindu law itself sets
no limit to the exercise of her power. It has however long
been recognised by the Couits that 'Hheie must be some
limit to its exercise, or at all events some conditions
in which it would be eilhei conlraiy to the spirit
of the Hindu doctrine to admit its continuance, oi
inequjtalilc in the face of other rights to allow it to take
effect” id) Lipon the difficult question of “where the line
should be drawn, and upon what piimuplc”. theie have been
considerable fluctuations of opinion in the judgments cjf the
Couits in India as w^ell as in those of the Judicial Committee

J he starting point of this limitation u])on the powei of the
widow wa^ Loicl Kingsdown’s judgment in Bhoohun Moyee v
Rain Kishote (e) Theie. one (h)ur Kishoie died leaving a
son Bhowanee and a widow, Chundiabullee, to whom he gave
authoiity to adopt in the event of his ^on's deatli Bhowanee
mail led and dic'd at the age of tweniv-foiir w ithout issue, but
h'aving a vsidow Bhoobun ]Vlo)ee (diinuhabullce then adopt-
ed Bam Kishoie. who sued BhowanCs widow foi the recovery
of the estate The jiaities being goveiiu'd b) the Dayabhaga
law, Bhoolnm Movee succeech'd to Bhowanee's estate in pie-
feience to Bam Kishoie. The Piiv) Council held that the
claim of Bam Kishore failed on the ground that even if he
had been in existence at the death of Bhowani'c, he could not
displac (* the widow of the latter. Then Loidships however
expiessed then opinion, ‘’"that at the time when (Ihundiabullee
piofessed lo exc'rcise it (hei powei of adoption), the power
was incapable of execution” on the ground that Bhowanee
had mairied and left a widow as his hen After the deaths of
Bhoobun Mo)ee and Chimdrabullee, Bam Kishore got
possession of the projieily, and if his adojition was good he
was undoubtedly the next heir A distant collateial however
( laimed tlu' estate on the giouncl that his adoption was invalid.
The Piivv Council held that ""upon the vesting of the estate
in the widow of Bhowanee, the powei of adoption was at an
end and incapable of execution” and that Bam Kishore had
therefore no title (/) This view was followed in Thayainmal

(d) Amarendra Mansingh v Sanatan Singh (1933) 60 LA, 242,
219, 12 Pat , 642, 650 651

(e) (1876) 10 MIA, 279

(/) Pudma Coomari v Court of Wards (1881) 8 I A, 229, 8 Cal.,
302, revg (1878) 5 Cal, 615

PARAS. 166-167.] TERMINATION OP WIDOW’S POWER.

233

V. Venkatarama (g). There, on the death of the last male
holder leaving his widow, his mother with the permission of
sapindas adopted a son to her husband. It was held that the
adoption was invalid. So also in Tarachuin v. Suresh
Chunder f/t), where a testator left a son and widow, and
authorised the latter to adopt on the death of the former, an
adoption made by the widow on the death of the son leaving
his widow, was held to be invalid.

§ 167. It is well-settled that in a joint family, the widow of
a coparcener can adopt a son to her husband notwithstanding
the vesting of his interest in another copaicener, even where
the latter is the last suiviving copaiccner or one posthumously
born (i). It is aUo settled law that where an aurasa or
adopted son dies unman led leaving his mother as his heir,
her power of adoption is still exercisable (;). Where however
a grandmother siieee(‘ded to her grandson who died unmarried,
it was held by a*Full Bench of the Bombay High Court that
her power to make an adoption was at an end. Chandavarkar, J
summed up the limiting piinciple in these words: “Where a
Hindu dies leaving a widow and a son, and that son dies Limiting
leaving a natural born or adopted son, or leaving no son but principle,
his own widow to continue the line by means of adoption, the
power of the former widow is extinguished and can never
afterwards be lev ived” ( A;) . This piinciple was approved
and applied by the Judicial Committee in Madana Mohan Deo
v. Punishottama Deo (Z) . There it was held that an adoption
by the mother-in-law when her adopted son died leaving a
widow was invalid even though it was a case of adoption to a
coparcener in an undivided family and the estate had gone
to another coparcener by survivorship.

ig) (1887) 14 I A., 67, 10 Mad, 205

ih) (1889) 16 I A, 166, 17 Cal, 122 Even the fact that the
widow left by the son re-marnes does not give the mother a right
to adopt Ramachandia v Murhdhar (1937) 39 Bom L.R , 599

(z) Raghunada v Brozo Kishore (1875) 3 I.A , 154, 1 Mad, 69.
Barhoo Hinkissondas v Manhorehai (1907) 34 I A , 107, 31 Bom, 373,
Yadao v. Namdeo (1921) 48 I.A., 513, 49 Cal, 1; Bhimabai v. Guru-
nathgouda (1933) 60 I. A., 25, 57 Bom., 157.

(/) Vellonki Venkata v. Venkatarama (1876) 4 I.A , 1, 1 Mad
174, Verabhai v. Bhai Hiraba (1903) 30 I A , 234, 27 Bom. 492,
Mallappa v. Hanmappa (1889) 44 Bom., 297.

(k) Ramkrishna v. Shamrao (1902) 26 Bom., 526, 532, F.B ; This
view was followed by the Calcutta High Court in Manickyamala
Nandakumara (1906) 33 Cal., 1306.

(/) (1918) 45 I. A., 156, 41 Mad., 855.

234

LAW OF ADOPTION.

[chap. V,

Pratapsing*s

case.

In Pratapsing v. A gar sing ji (m) a village was held as a
maintenance grant by a junioi branch of the family whose
head was the holder of an impartible estate. The last male-
holder of the village, Kaliansing, died childless leaving a
widow. By the custom of the family such grants reverted to
the estate upon failure of male descendants of the grantee.
Accordingly the village became vested in the owner of the
estate by reverter. Thereupon some five months after Kalian-
sing’s death, his widow adopted a son to him. It was held
that the adoption was good and that the adopted son was
entitled to succeed to the village though it had on the death
of Kaliansing vested by reverter in the owner of the estate.
The Judicial Committee observed: ‘‘The Hindu lawyers do
not regard the male line to be extinct or a Hindu to have
died without male issue until the death of the widow renders
the continuation of the line by adoption impossible” and
accordingly their Lordships laid down in clear terms, that
“the right of the widow to make an adoption us not dependent
on her inheriting as a Hindu female owner her husband’s
estate. She can exercise the power so long as it is not
exhausted or extinguished, even though the property was not
vested in her”.

§ 168 . One question however remained on which there
was no definite pronouncement by the Privy Council. Where
the last surviving member of a coparcenary died leaving an
heir in whom the properly vested, it was held by
the courts in India that a widow of a pre-deceased
coparcener could not validly make an adoption to her
deceased husband which would have the effect of divest-
ing an inheritance already vested (n). Likewise it was held
that where the separate estate of the last male holder became
vested by inheritance, not in the adopting widow, but in a
collateral, her power of adoption was at an end (o). In other

(m) (1918) 46 lA, 97, 43 Bom, 778, see also Dundoohai v.
Vithalrao (1936) 60 Bom., 498.

(n) Chandra v Gojarabai (1890) 14 Bom., 463; Shri Dharnidhar
V. Chinto (1896) 20 Bom, 250, Vasudeo Vishnu v. Ramchandra (1898)
22 Bom, 551 (FB); SJuvbasappa v Nilava (1923) 47 Bom, 110,
Shivappa v. Rudrava (1933) 57 Bom, 1; Adivi Suryaprakasa Rao v.
Nidamarty Gangaraju (1910) 33 Mad, 228 Even befare the recent
Privy Council decisions this view was doubted by Seshagiri Ayyar, J ,
in Madanamohiin v. Puriishottam (1915) 38 Mad, 1105, 1118, and
was not followed by Venkatasubba Rao, J., in Panyam v. Rama^
lakshmamma (1932) 55 Mad., 581, 590, where the coparcenary had
come to an end by partition and there was vesting in another.

(o) Annamah v. Mabbu Bah Reddy (1874) 8 Mad. H.C., 108;
Doobomoyee v. Shama Churn (1886) 12 Cal, 246, Bhimabai v. Tayappa
(1913) 37 Bonf., 598; Kesarbhai v. Shivsangji (1932) 56 Bom., 619.

PARA. 168.] TERMINATION OF WIDOW’S POWER.

235

words a distinction was made between cases of vesting by in-
heritance and vesting by survivorship. While in the latter case
adoption could validly be made till the coparcenary came to
an end, in the former case an adoption could not be made once
the inheritance vested in a collateral. In Panyam v. Rama*
lakshmamma (p), however, it was held that the widow of a
pre-deceased coparcener was entitled to adopt a son to her
husband even if the coparcenary became extinct by partition
between the surviving members of the joint family. A recent
decision of the Privy Council in Amarendra v. Sanatan (qr),
following the implications of the decision in Pratapsing's
case (r), has swept away the distinction between cases of
vesting bv inheritance and vesting by survivorship and approv-
ing of the rule laid down in Ramakrishna v. Shamrao (s),
has laid down a simple and intelligible rule of limitation
applicable to all cases alike. In that case, a Hindu governed
by the Benares school of law was survived by an infant son
and a widow, to \?hom he had given authority to adopt in the
event of the son dying. The son succeeded to his father’s
impartible zamindari and died unmarried at the age of twenty
years and six months. By a custom of the family which
excluded females from inheritance, the estate did not go to his
mother but became vested in a distant collateral. A week
after the son’s death, she made an adoption to his father. It
was held that the adoption was valid and that it divested the
estate vested by inheritance in the collateral. Nothing turned
upon the question that it was an impartible zamindari nor was
it treated as a case of coparcenary or survivorship f/) . On the
contrary, the judgment proceeded upon the basis that on the
death of Bibhudendra, the son, the collateral in whom the
estate vested was a separated sapinda claiming “strictly by
inheritance” (u) , Their Lordships relied upon the principle
stated in Raghunada v. Brozo Kishore “that the validity of an

ip) (1932) 55 Mad., 581.

(<7) (1933 ) 60 I.A., 242, 12 Pat, 642. reversinp^ 10 Pat., 1 and
ovemiHnjf Bhimahai v. Tayappa (1912) 37 Bom , 598 As a result
of the P.C decision, Annrtmah v Mohbu Bnh Reddy (1874) 8

Mad. H.C., 108* Adivi v. Ntdamartv (1910) 33 Mad., 228, and Chandra
V. Gojarabai (1890) 14 Bom., 463 and cases following them are no
longer good law.

(r) (1918) 46 I.A., 97, 43 Bom., 778.

(5) (1902) 26 Bom.. 526 (F.B.).

(^) As is wrongly supposed by a recent Full Bench of the Bombay
High Court in Balu Sakharam v. Lahoo Sabhaji [19371 Bom., 508, 539.

(a) When the case was before the Patna High Court the cfuestion
had been diacus^ed both on the footing of inheritance and survivorshin.
But before the Privy Council, the Zamindari was claimed on the basis
that it was separate property and that the adoption could not divest

Amarendra' 9

case.

236

LAW OF ADOPTION

[chap. V.

Vijaysingji’s

case

adoption IS to be determined by spiritual rather than teinpoial
( onsidei alions, that the substitution of a son of the deceased for
spiritual iea‘5ons m the essence of the thing, and the conse-
quent de\olulion of piopeitv a meie accessory to it‘’(t;).
Alter a full review of the authorities and aftei balancing the
opposed views, their Lordships came to the conclusion that
“■the \esting of the properly on the death of the last holder
in some one other than the adopting widow, be it either
anothei coparcener of the joint family, or an oulsidei claiming
bv rcneitc'r, oi then Lordships would add, bv inhei'tance,
cannot be in itself the test of the continuance or extinction of
the powei of adoption If in Piatapsin^^s case the actual
level lei of the propel tv to the head of the family did not bring
the power to an end, it would be impossible to hold in the
liiesent case that the passing by inheritance to a distant
relation could have that eflec I any moie than the passing bv
suivivoiship would in a joint family” The Privy Council
held aic oidingly (1) that the interposition (5f a grandson, or
the son's widow, bungs the mothers jiower of adoption to an
end, (2) that the powc'r to adopt clocks not depend upon any
question of vesting oi divesting of propel tv, and (3) that a
molliei’s authontv to adopt was not extinguished bv the nieie
fact that hei son had attained ccieinonial c ompetenc (' ( )
This decision was followed in \ i jaysinp^^ji v Shivsan^ji (v),
a case fjom Bombav In that case the holclei of an inqiaitibh^
estate left a widow and a son Chhaliasingji The latter inherit-
ed the estate but was afterwards adopted into another family
Two }ear& lalei, wlien the piojjerlv was v costed in a collateial,
the mother of the last male-holder made an adoption to hei
deceased husband Keversing the judgment of the High Couit,

the esidte wliidi lid<i vcsied eight (layb previously in Banauidli d^
the colldleral lieir of the last male holdoi , Amarvndra v Sanntan
60 I A, 212, 216 7, 12 Pat, 642

d ) (1876) J I A , 154, 192 1 Mad 69

iw) The judgimnl expressed complete agreement with the oi)inion

Wdlldce, J, in Tripiiramba v V enhataratnam (1922) 46 Mad, 423,

4^3-4, that ‘the purpose of diloplioii i^. to perpeluate the lim, and if
the onl\ ‘^on dies without leaving anyone to pcTpeluate the line, thert
secmis no good leason for restricting the power of the motliei to
pc'rpetudle it iii the onl> way die can hv adopting a son to hei own
husband’ For a report of the arguments hefoie the Judicial Pom
mittei in dniaicridra ^ case, see 37 P W N , 997 Bhimabai v Guru
nathgonda (19^) 60 I A , 25, 57 Bom. 157 was cited to their Lordships
and also other impoilant decisions of the High Courts Evidently the
fiidicial Committee had all the relevant Indian decisions in their
mind See (193J) 60 T A , 242, 251, 253

(a<) (1935) 62 lA 161, 59 Bom, 360, leversing (1932) 56

Bom , 619

PARAS. 168-169.] TERMINATION OB WIDOW S POWER

237

the Privy Council reaflSrmed their view in Amarendra^s case.
Their Lordships observed that a widow’s power to adopt does
not depend upon any question of vesting or divesting of the
estate. In this case also, it is clear from the judgment of
the High Court, that ‘‘‘the estate was the separate property of
the defendant Chhatrasingji, and could be alienated by him
as the sole surviving member of the joint family” and the
claimant was not a member of a joint family claiming b\
survivorship, but was a separated sapinda claiming bv
inheritance (y) . It will be obvious that the adoption
was made not to the last male holder but to the previous holdei
and the High Court followed Chandra v. Gojaiabai (cj and
Sii D/iarnidhat \ Chirito (a) ,

S 169 The two lecent decisions of the Privy Council
were discussed by a Full Bench of the Bombay High (]()Uit in
Balu Sakharani v. Lahoo Satnbhaji {b). There, an adoption
was made by the widow of a pre-dcceased copaicener aftei the
joint family piopeitv had vested in the widow of the last
Mirviving copai<cner The decision of the iiiajoiily was that
the adoption was valid but that it did not divest the estate
whi(h had vested liy inheiitante in the widow of the suivivmg
coparcenei The learned judges erroneouslv assumed that
in Amarendras case (c) and in Cijaysingji’s case (d), a
copal cenary was in existence at the date of the adoption (e)
The very opposite of it is cleaily stated by Sir (George Lowndes
in Amarendra" s case and is to be found in the decision of the
High Couil in Vijaysirigji’s case. Beaumont, C.J., observ'^cd
“In view of Amarendias case, I think that the adoption in
Chandra’s case (/) must be tieated as valid and if the decision
was otherwise, it must be treated to that extent as ovei ruled”
The decision in Chandra’s case was cleaily understood by Sii
Oinshaw Mulla in Bhiniabhai v. Gut urmthgouda {g) as hold-
ing that the adoption made by a widow after the extinction of
a coparcenaiy was invalid. But in Bhirnabais case, as the

(y) (1932) 56 Bom., 619, 627, 628.
iz) (1890) 14 Bom, 463

(a) (1896) 20 Bom, 250, see 56 Bom., 619, 653, 654.

(b) [1937J Bom, 508, B' B., approving Shankar v. Ranirao (19351
60 Bom., 89 and Dhondi Dnyanoo v. Rama Bala (1935) 60 Bom, 83
overruling Umabai Dhagwant v. Nanr Mahadev (1935) 60 Bom., 102,
and Vishnu v. Lakshnn (1933) 37 Bom. L.R., 193

(c) (1933) 60 I A, 242, 12 Pat, 642
id) (1935) 62 I A, 161, 59 Bom, 360.

(e) 11937] Bom, 508, 539

(/) (1890) 14 Bom. 463.

ig) (1933) 60 I A., 25, 57 Bom., 157

Bombay
dec ision

2U

Law ot' ADOPTION.

tcHAP. V,

Whether
son’s widow
should hare
power to
adopt.

coparcenary was in existence at the time of the adoption, the
Judicial Committee distinguished it without expressing any
opinion as to the correctness of the decision in Chandra^s
case. Obviously Chandra v. Gojarabai (/) cannot be treated
as good law after the two recent Privy Council decisions on
the question of validity of an adoption in circumstances
similar to those that existed in that case. In another case in
Bombay (h) where an adopted son who was the last male
holder of watan property and was entitled to it as his separate
property, died leaving two daughters but no widow, it was held
that his mother could make another adoption after the
property had vested in the daughters by inheritance. It is
therefore now plain that the mere marriage of the son does
not put an end to his mother’s power of adoption, for unless
he leaves a widow to continue the line, the mother’s power to
do so IS not at an end (i) . In Subramaniam v. Somasun-
daram, the Madras High Court held that an exception to the
rule that the mother’s power of adoption is at an end when
the son has left a widow may by custom exist. It was a case
of Nattukottai chettis in the Ramnad district. A custom that
both the mother-in-law and the daughter-in-law can make
adoptions, though not proved as a custom of the community
was held to be suflSciently proved as between the parties (/).

§ 170. One question is however left open by the Privy
Council in Amarendra^s case (&) : whether, in order to
bring the mother’s power of adoption to an end, it is
necessary that the son’s widow should herself be clothed
with a power to adopt. This question does not appear
to raise any serious difficulty; for in Bombay she can
always adopt. In Madras she can obtain the authorisation from
her husband’s sapindas. In other provinces where without her
husband’s authority she cannot adopt, the question may
however require an answer. But if the son left a widow
whom he could have authorised that would appear to be
sufficient. For his failure to authorise his wife to adopt cannot
have greater consequences than the failure or refusal of a
widow so authorised to adopt.

(h) Chanbasappa v. Madiwalappa [1937] Bom., 642, following
Amarendra's case. See also Ramachandra v. Ml Yammi Bai A.I.R.
1936 Nag., 65 F.B.

(i) Amarendra v. Sanatan (1933) 60 I.A., 242, 260, 12 Pat., 642;
approving Venkappa v. Jeevaji (1901) 25 Bom., 306.

(;) (1936) 59 Mad., 1064. The instances apparently were few and
recent. It may be doubted whether a custom would be reasonable
and valid by which the moth^-in-law claims to make an adoption
after an adoption by the daughter-in-law.

(k) (1933) 60 LA., 242, 12 Pat., 642.

PARAS. 171-172.]

WHO MAY GIVE IN ADOPTION.

230

§ 171. The decision in Amarendra^s case (k) is rested
upon the duty of providing for the continuance

of the line for spiritual purposes and upon the
religious efficacy of sonship. Probably an attempt

will be made to distinguish it from cases of adop-
tion in communities such as Jains amongst whom it is held to Jains,
be a purely secular act (Z). It is not clear that it was intended
to make a distinction between cases where the religious motive
may be presumed and cases where an adoption is purely a
secular institution. If the religious efficacy of sonship is
more than a historical or theoretical basis for deducing a
general principle, then the rule laid down in Amarendra^s case
may not apply to communities such as Jains. But adoption
itself is in all cases for the continuance of the line and for the
perpetuation of the family name, whether the motives are
secular or religious, and the reasons for or against setting
limits to a widow’s power in the one case as in the other are
substantially the'^same.

The Hindu Women’s Rights to Property Act, 1937, if
anything, makes the position of the adopting widow stronger.

For, in every case to which the Act applies, the effect of an
adoption by her will only be to divest a moiety of her own
interest (Z^).

§ 172, Second, Who may give in adoption. — ^As the Only parents
act of adoption has the effect of removing the adopted son
from his natural into the adoptive family, and thereby most
materially and irrevocably affects his prospects in life, and
as the ceremony almost invariably takes place when the
adoptee is of tender years and unable to exercise any discre-
tion of his own in the matter, it follows that only those who
have dominion over the child have the power of giving him
in adoption. According to Vasishtha (m), both parents have
power to give a son, but a woman cannot give one without
the assent of her lord, Manu says (n) : “He whom his father
or mother (with her husband’s assent) gives to another, etc.,
is considered as a son given.” The Mitakshara says: “He
who is given by his mother with her husband’s consent, while

(/) See Dhanraj v. Sonibai (1925) 52 LA., 231, 52 Cal., 482.

(l^) See post Ch. XIV.

(w) Vas., XV, §§2, 5; Dig., II. 387,

{n) Manu, IX, 168; Medatithi’s gloss on this verse is: “It would
be more reasonable to read ‘and’ instead of *va* ‘or’ — ‘the father

and the mother’; the child belongs to both the parents and cannot
be given away, if either of them is unwilling.” Jha, Medatithi Bhashya,
Vol. V, 154

240

LAW OF ADOPTION

[chap. V,

Assent of
wife.

her husband is absent, or after her husband’s decease, or who
IS given by his father or by both, being of the same class with
the person to whom he is given, becomes his given son” (oj
The wife can only exercise this power during her husband’s
life with his assent It is quite settled that the father alone
has absolute authority to dispose of his son in adoption, even
without the consent of his wife, though her consent is generally
sought and obtained (p). The wife cannot give away her
son while hei husband is alive and capable of consenting,
wnlhoiit his consent; but she may do so aftei his death, or
when he is permanently absent, as, foi instaiue, an emigrant,
or has entered a religious order, or has lost his reason (< 7 ),
provided the husband was legally competent to give away his
son. and has not expiessly prohibit(‘d his being adopted (r).
No othei relation but the father or motliei can give away a
boy ( 6 ) For instance, a step-mothei cannot give away hei
step-son (^) , a brother cannot give away his brothei (i/)
Nor can the paternal giandfather, or any either person (t;)
Nor can the paients delegate their authoiit) to another person,
foi instance a son, so as to en.dile him, aftei then death, to
give away his brother in adoption, for the act when clone must
have parental sanction (cc) And, thc^refoie, even an adult
orphan cannot be adopted, because he can neither give himself

( 0 ) Mit , I, xi, 9.

ip) Dat. Mima, IV, 13 17, V, 14, 11 , Dig, II, 387, Alank Manjari
V Fakir Chand 5 SD, 356 (418), Chitko liaghunath v. Jaiiaki (1874)
11 Bom HC, 199, Mit , 1, xi, §9

iq) Dat. Mima, IV, 10-12, Dat Chand, I, 31, 32, Mit, I, xi,
§9, Arunachellurn v hasamy 1 Mad, Dec, 154, Huro boondree v
ChundermoTiy Sevest , 938, Rangubai \ Bhagirthibai (1878) 2 Bom.,
377, Mhalsabai v Vithoba (1870) 7 Bom 11 C , Appx , 26, Jogesfi
Chandra v Nrityakali (1903) 30 Cal, 965, Raja Makund v Sn
Jagannath ( 1923 ) 2 Pat , 469.

(r) Narayanasivami v. Kuppubxvami (1888) 11 Mad , 43; GurU'
hngaswami v Ramalakshmamma (1895) 18 Mad, 53, 58, affd (1899)
26 I A , 113, 22 Mad, 398, Bircbivar v. Ardha Chander (1892) 19 I A ,
101, 105 6, 19 Cal, 452, 461 (the person giving in adoption must have
attained the age of djstntion, and must be of sound mind)

( 5 ) This IS cited in Dhanraj \ Sonibai (1925) 52 I.A., 231, 236,
52 Cal, 482

(/) Papamma v Appa Row (1893) 16 Mad, 384 An adoption of
a son self-given is foi bidden by Aditya Parana and Dat Chand , 393.

(n) V. Darp, 825, Mt Tara Miinee v. Dev Narayun 3 SD, 387
(516) , Moottoosamy v. Lutchmeedavummah Mad. Dec., 1852, p. 97

(v) Collector of Surat v. Dhirsinghi (1873) 10 Bom. H.C., 235.

(to) Bashetiappa v. Shivlingappa (1873) 10 Bom. H.C., 268.

PARAS. 172-173. J

WHO MAY BL \DOPTED.

241

away, nor be given by anyone with authority to do so (;c) .

But what the law declines to sanction is the delegation by an
authorised person to an unauthorised person ol the discretion
to give in adoption which is vested solely in the former
Wheie the necessary sanction has been given by an authorised
person, the physical act of giving auay in pursuance of that
sanction may be delegated to anothei (y).

A widow, on her remarriage, has no right to give in adop-
tion hei son by hei fust husband (z). Where a husband
authorised his wife to give Ins boy in ‘adoption but made it
dependent upon the fulhlmcnt of a certain condition such as
llidt the adopting party should first obtain the consent of the
Government, it was held that the adoption was invalid foi
non-lulhlnient ol that condition (;;^)

§ 173. Third, Who may be taken in adoption. —
According to the Dattaka Mimainsa and the Dattaka Chan-
drika, in the first place, the neaiest male sapinda should be Nearest
selected, if suitable m other lespccts, and, if possible, a ‘^apimla
brother’s son, as he is already, in contemplation of law, a son
to his uncle If no such near sapmda is available, then one
who is more remote; or in default of any such, then one who
IS of a lainily which folhwsthe same spiiilual guide, oi,

111 the case ol Sudras, any member of the caste (a j. The
Mitakshara understands the text of Vasishtha to mean that an
adoption should he of one whose kinsmen are not remote and
it tliciefoic says that the adoption of one very distant bv

(r) Subbaluvammal v. Ammakutti (1864) 2 M.H.C , 129,

Halvantrav \ Hayabai (1809) 6 Bom II C (()CJ),8c>, (1873) 10 Bom
H.C., 268 supia^ Vaithihngam v, Natesan (1914) 37 Mad, 529; Kuppu-
sawmy Reddy v. Venkatalakbhmi Animal (1915) 18 JM L.T., 434,

Marayya v. Ramalakshnu (1921) 44 Mad., 260.

(>) Vijiarangam v. Lakshuman (1871) 8 Bom. H.C. (OCJ), 244,
Venkata v Siibadra (1884) 7 Mad, 548, Subbarayar v. Siibbammal
(1898) 21 Mad, 497 Shamsing v Santabai (1901) 25 Bom, 551,
p 553 (Hindu convert to Islam giving his bon in adoption through
delegation), Kusiini Kumari v. Satya Ranjan (1903) 30 Cal, 999,
Mt Chunnihai v Girdharda! AIR 1934 Nag, 1; in Neelaua v.
Gurshiddappa A T.R 1937 Bom, 169, where an excommunicated piuson
gave his son in adoption and the excommunication was not of the
highest grade, the adoption was held valid as no religious ceremony
was required

( 2 ) Panchappa v Sanganbasawa (1900) 24 Bom, 89, Fakirappa
v. SavLtrewa AIR. 1921 Bom., 1, F.B , 23 Bom. L.R., 482, overruling
Putlabai V. Mahadu (1909) 33 Bom , 107, Mt Sheokabai v Ganpat
AIR. 1925 Nag, 1, F.B.

( 2 I) Rangubai v. Bhagirathibai (1878) 2 Bom., 377
(a) Dat. Mima, II, §§ 2, 28, 29, 67, 74, 76, 80, Dat. (h, 1, §§10,
20, II, §11; Mit., I, ]1, §§13, 14, 36. V. May, IV, 5, §§ 9, 16, 19.

18

242

LAW OF ADOPTION

I f H AP V.

fiientitv
of ca«<te

Oj phan

(oiuitiv and language is forbidden ib) It is now settled
that these precepts are rnerel) ret oinmendatorv and that the
adoj)tion ol a sti anger is valid, even though iieai lelalive^^
olheiwise suitable, aie in existent e (c)

Jn the second place, the adopted son must bi‘ ol tin* saint*
taste as his adopting fathei. that is, a Brahman iiia} nt>l
adtipl a Kshatiiva. oi iite vetsa Vhv lule in iht Saunaka
>mriti which is next to Vasishtha the chiel aulhoiitv on tin
mattei, expresslv piohibits an adoption outside the < aste, foi
It says that adojilion m all classes must be made in their own
classes only atid not ot/ietwise (<l) Fhe Milakshara is

Lonrliisive on the mattei Commenting on the text of Mann,
It says that the dattaka son must be a savarna oi of the same
( lass ie) The adoption of a person l)elt)nging to a differenl
piiinai\ taste is theiefoie invalid (eM But an adoption oi
a person from a sub-taste ol the same primarv ea^te is
\a]id(/) So also a membei of one relHiioii'*^ sett may
adopt a son from anothei religious sect (g)

^ 174 An orphan cannot be validly adopted ih) in
lht‘ absence of a custom to the contiary (/)

(b) I, XI, 14, ainl Lolebrooke's nolr". to I \1, 13 Vivada Katna
kara, ch XXIV, p 70

(c) 1 W. MacIS , 68, 2 Stia 111^, 98 102, GocooUiniind v If oonw

Dace (1875) 15 Heng LR, 405. 23 \\ R, 342, affirmetl siibnonunee
Umadcvi v Gokoolaninid (1878) 5 lA. 40. 3 Cal. 587, Babaji \
Bhagirathibai (1869) 6 Rom II C’ (A('J ). 70, Dharma Hagu v

Rarnkrishna (1886) 10 Bom 80

id) Dat Mima II 74 \ Mavukha, 1\ . 5, 9, the Dattaka
Chandnka abo rlearh ''tale*; that tins restriction forbids the adoption
of a boy of a different ca^^te, I 16

(e> Mit (Setiui's edn , 693) I, XI, 9, MedhatithiV comment is
alike’ in Mann’s text does not mean ‘alike bv caste’, but Kiilliikd
differs and interprets it ‘alike bv caste’ The Vyavahaia Mayukha
(IV, 5, 4) accepts Kiilbika’s comment quoting Yajnavalkva, ^aiinaka
and Vijnanesvaia

( gi) Dat Mima , III, 13

(/) Shib Deo Misra ^ Ram Prasad (1924) 46 All, 637, 646
approving Nnraiu Singh \ Mt Shiani Koh Kunwar (1914) 17 Oiidh
f ases, 186

1^) Kiisiim Kuman \ Sana Ranjan (1903) 30 Cal 999

ih) Bashettiappa \ Shu Imgappa (1873) 10 Bom HC 268,
I aithihngam v Natesa (1914) 37 Mad, 529, Mareyya v Ramalakshmi
(1921) 44 Mad, 260, Sukhbir v Mangeisar (1927) 49 All 302,
Dhanraj \ Sonibai (1925) 52 I 231 237, 58 Cal, 482

(r) Ramkishore v Jainarayan (1921) 48 I A, 405, 49 Cal, 120
(Dhiisars of the Punjab) , Parshottarn v Vemchand (1921) 45 Bom.
754 (Jams m fdar btate) , Subramaniau Chettiar v Somusundarani
(1936) 59 Mad, 1064 (Nattukottai Chelties of Madras), Kunuat
Basant v Kunwar Brij Raj (1935) 62 I \ , 180: 57 All, 194 (Fats)

PAR\. 171. I

WHO VlAV ADOPTED

243

The Smritis undoubtedly prohibit the adoption of an
only son. Vasishtha and Baudhavana sav, ‘"Let no man
give or receive in adoption an only son, for he must remain
for the obsequies of his ancestor” (y). Saunaka says, “By no
man having an only son is the gift of a son to be ever made”.
The Dattaka Mimamsa explains that a prohibition ol accept-
ance of an only son is also established by Saunaka’s text (k).
The Mitakshara, while quoting the above text of Vasishtha
expresses its opinion that an only son must not be
but it does not say ‘nor accepted* (Z). This piohibilion is b\
some authorities extended to the adoption of an eldest ^on.
Nince he chiefly fulhls the office ol a son (m). This is i learlv
d moral piecepl and it has been held that the adoption of an
eldest son is valid (/i). Saunaka says that by a man having
several sons, a gift should be made (o). The aigunient that
as Vasishtha assigns a reason for his injuiulion not to give oi
accept an only son, it is not an impeiative lule (vidhi) is, a*^
already explained, wholly incoriect (p) But the leasou
itself may well be legaided as pail of the rule (vidhi) if the
aulhorilv of the Mitakshara and the Paiasaia Madhaviya that
the assignment of the leason or aithavada may, when neces-
sary, be tieated as a vidhi is to be followed (gr). As the
leason roncerns the givei, the injumtion alTcets him only and
not the takei. Whatever the collect explanation mav be, it
IS now settled h\ the decision of the highest tiibiinaL on an
elaborate examination of the authoiilies. that the rules regaid-

(/) Yds, XV, >, 1- Bdiiclhaydiid Paiibisslillia, SBF Vol XIV
VII. 1-5 (p. 554). In Rome, the only male of hi" fivns (ouJd nol lx
adopted for the sacra would in ssiich case be lost

ik) Dat Mima., IV, 1-3

il) Mil., 1, \1, 11, noi dt copied is BalambhatlaS gloss

im) Mil, I, XI, 12, citing Manu, IX, 106, Viiamit , II, 2, 8,
'sara&vati Vilasa, 1^^368, 569, 2 Sira. H.L, 105, 2 W. MacN., 182.
V. Mayiikha. IV, 5, 4; Pernuiiil ISaitken v Potee immal Mad Dec
of 1851, 234

in) Janokee v. Gopaul (1876) 2 Cal., 565, affirmed on facts (1883)
10 I.A., 32, 9 Cal, 766, Kashibai v. Tatia (1885) 7 Bom, 221
famnabhai v. Raichand (1885) 7 Bom, 225

(o) Dat. Mima., IV, 5, 9

(p) ante §20 The DdUaka Miiiidniva doc*" not extend tlu* piohi
bition to an adoption of an only "on of a brother by another brothei
as It restricts the injunction by the reason given 11, 57, 38, VT, 31-56
17, 4S.

iq) Mit. on Yajn., 1, 56, Vidyaruava’s trails., 120, Vijnanesvara
says “Here by assigning the reason That out of her he is
hoin himself, the author prohihits a iiiatiiage ivilli a Siidia woman
U)r one who is desirous of begelling a naityaka (net cssary) son
Parasara Madhaviyam, Setlur’s trails., 552.

Only son

Eldest son

244

Two persons
cannot adopt
the same bov.

Adoption of
an adopted
son

Personal di«i
qualification

One whose
motluT could
have been
married

LAW OF ADOPTIOM. [CHAP. V,

ing the adoption of an only son are merely moral precept<>
but do not affect Us validity (r).

Two persons cannot adopt the same boy, even if the persons
adopting are brothers Such an adoption is illegal undei
the Hindu law ( 5 ).

A man who gives his only son in adoption to another
can himself adopt a son, as he becomes soilless (f) But a
man who adopts a son cannot give that son in adoption to
another even if the lattei be the son's natural fathei For,
the gift m adoption can only be made by one’s own natuial
father or mother (u)

y\s one icason loi adoption tin' perfoimancc ol
funeral (eiemonies, it follows that one who fiom anv peisonal
disqualification would be iiuapalile ol peiloiniiiig them, would
be an unfit peison to be adopted (v).

^ 175. Theic is anothei lule that no onif can be adopted
whose mother in her maiden slate the adoptcT could not have
legally manied (icj There has been i on«iideiable loiitio-
versy about this rule Its oiigin and binding chaiactei
have been criticised with gieal learning and force 1)\
Mr. V. N. Mandlik (a) He admits lhal '’th(‘ Haltaka Chan-

(r) brL UaliiiiU Guruhngasiiami \ l^alusu Ramalaliih mamma (18^19)
26 I A, 113, 22 Mad, 398, aflirming (1895) 18 Mail, 53, Bern Pershad

V Mt Hardai Ihhi (1892) 11- All, 67, 1 B, affiimed Radlia Mohan

V Hardai Ihbi (1899) 26 I \ , 113, 21 Ml. d60, 1 ir/s ( himanlal v

Ramathandra (1900) 21 Bom., 367 knshna v Puramshri (1901)

25 Bom , 537

( 5 ) Dhanraj Joliarmal v SoniOai (1925) 52 JA, 231, 242, 52 Cal
182, Raj ioomar \ Risscssiir (1884) 10 Cal., 688, 696-697

(/) Balubu Gurulingasuami \ Baliii^u Ramalaksh mamma (1899)

26 l.A , 113 (diclum at p 142), 22 Mad, 398, Vija\saugji \ S/io
sangjL (1935) 62 I \ , 161, 59 Bom, .^60 (where such an adoption
was treated as valid) on appeal from 56 Bom , 619

(n) Sarkar, Adoption, 2nd c<in, 281-282

(rO Suth S>n, 665, V>av Daip, 828, 830 compaie Dat Mima

II. 62.

iiv) Dat Mima, \, 16-20, Dat Chand. 11 7-8
(a) Page^ 478 195, 514 Di Jolh aFo sa>s that ‘a clohc

examination of the oiiginal auUionlie*^ slmw-^ that there is \crv little
if anything, in the Sanskrit tn alises to waiianl the formation of siu h
a rule as thi*^’' TLL, 163 The express prohibition of daughltr^
son, sister’s son and mot Ik 1 s sister’s son for adoption was evidently not
due to the inferior religious merit of such adoptions, for the daughter’s
son was from the most ancient limes a specially adopted son as a
putnka putra. The prohibition to adopt near bandhus was probably
to ensure that the near agnates like the brother’s son were
adopted as, without the prohihilion, a daughter’s son, or a 'lister’s
son or a mother’s Msur's son would ordinarily he preferred to an
agnate But the rules regarding the adoption of near agnates are
regarded as mere moral precepts while the prohibition which secured
that object is treated as a legal rule

PARA 175.J

WHO MAY BE ADOPTED.

245

drika, the Dattaka Mimamsa. the Samskara Kaustubha, the

Dharma Sindhu and the Dattaka Nirnaya contain this

prohibition.” These duthoiities base their opinion, first, on

the text of Saunaka that the adopted boy must bear the

reflection of a son, to which they append the gloss “that is

the capability to have been begotten by the adopter through

niyof^a. and so foith” (y) . Secondly^ they roly upon a text

which IS attributed variously to Saunaka. Vriddha Gautama,

and Narada. which states that a sister’s son and a daughter's

son may be adopted by Sudras, but not by membeis of the

three highei classes, and upon a text of Sakala which explicitly

foibids the adoption by one of the regenerate classes of “a

daughters son, a sister’s son, and the son of the mother’s

sister” (zj. As to the former text, Mr. Mandhk argues that

the correct tianslation is “Sudias should adopt a daughter’s

son, or a sister’s son. A sister’s son is in some places not

adopted as a son among the three classes beginning with a

Brahmana.” lie points out that the Mayukha, as propeily

reiid(’red, interprets the text as meaning that Sudras should

ado])t only, or primarily, a daughter’s or a sister’s son, but

not as forbidding such adoptions by Brahmans. This view

is also supported by the Dvaita Nirnaya, and the Nirnaya

Sindhu (a). The fact still remains, however, that the five Rule confined

digests above referred to lay down the rule m distinct and d^ree ^

positive terms The rule so laid down was stated by Mr ^

Sutherland, both the Mai Naghtens, and both the Stranges (b) ,

and, as limited to the three regenerate classes, it has been

affirmed by a singularly strong senes of authorities in all parts

of India as foi bidding the adoption of the son of a daughlei.

or of a sister, or of an aunt (c). The rule itself was re- Madras.

(y) Dat. Mima., V, 15-17, Dat. Chand., 11, 7, 8. The wordb and
so forth’ cannot lefer to marriage hut probably refer only to iin-
duthoribfd carnal connection For, if marriage had been meant, it
would have been mentioned first in order But a man cannot be
authori‘^ed to approach a woman to beget a kshetraja son, if she ib
a sagotra woman or within prohibited degrees or if there would be
viruddha sambandha The deduction therefore was right, but the
real objection is to make the obbolele and prohibited practice of
niyoga the legal ba‘-js for a working rule of Hindu law (^)mpare
Raghunada v Brozo ( 1878) 3 T.A., 154, 190-1, 1 Mad , 69
iz) Dat Mima, II, §§32, 74, 107, Dat. Chand, I, §17.

(а) V. May., IV, 5, §§ 9, 10; V. N. Mandhk, pp. 53-56.

(б) Suth. Syn., 664; F. MacN , 150; 1 W. MacN , 67, 1 Stra 11 L.
83; S.M., §84

(c) Baee Giinga v. Baee Sheokoovar Bom. Sel Rep, 73,
Narusammal v. Balarama Charlu ('1863) 1 M.H.C., 420, Jivani v Jivu
fl864) 2 M.II.C., 462, Gopalayyan v. Raghupatiayyan (1873) 7

M,H.C, 250; Ramalmga v Sadasiva (1864) 9 M I,A , 506, where the

240

LAW OF ADOPTION.

[chap. V,

Bombay

affirmed by the High Court of Madras after a full examination
of Mr Mandlik’s argument {(I) In Raghavendra Rao v
Jayatania Rao {e). the Couit treated it as the settled law.
except where there is usage to the contrary, that the natural
rnothei of the hoy to he adopted, should he a person who.
in hei maiden state, might lawfully have been married to the
man for whom the adoption is made. A judgment of the
Judicial Committee reversing a Full Bench of the Allahabad
High Couit has finally established the invalidity of adoptions
of that class in all cases to which the general Hindu law'
applies, in the absence of a custom to the contrary (/) On
the same ground, it is unlawful to adopt a brother, a step-
brothei oi an uncle, whether paternal or maternal (g)
The Romhav High Couit has confined the restrictive
rule to the three '^pe< ifir instances of daughter’s

son, sisteCs son and inolhei's sistei’s son (h) It has
accoidingly treated the adoption of a mother’s brother’s
son(0« a father’s sister’s sonfy), a Half-brothei {k),
a father’s brother’s son(/), a daughter’s husband (m)
or of the husband’s brother (n) as good in law

^ 176. ll niak(‘^ no diflererui* that the adopter has
hiinsell })cen lemoved from his naluial family by adop-
tion, foi a(lo[)tion does not leniovi^ the bar of consanguinit)
which would open ale to pievcml inlei -niai riage within the

sicle-nolL ( alls the paities Vdisyas though they were really Sudras
Sec supia 2 \1 ll ( , 467 Kora Shunko v Bebee Munnee 2 M Dig,
32, Copal \ajfuu v Hanmant (1879) 3 Bom, 273, where dll the
diillionliis ait examined, Bhagirthibai v Radhabai (1879) 3 Bom,
298, Barba ti v bandar (1886) 8 All, 1, affd 16 I A , 186, 12 All., 51

id) Minakslu \ Rarnanadha (1888) 11 Mad 49, FB
(e) (1897) 20 Mad, 281

(/) Bliagwan Sing/i \ Bhagwan bingh (1899) 26 1 A , 153, 21 All
112, leveisiiig 17 Ml. 294, Loli v Murlidhar (1906) 33 I A., 97, 28
\ll . 488, Ishuaii Brasad \ Rai Haii Brashad (1927) 6 Pdl , 506 See
dho Battu fAtl ^ Barbati (1915) 12 I A. 155, 37 All, 359, Jai Singh
V Bijai Bal (1905) 27 Ml 117

(g) Dal Minid, V, 17, Snramulu v Ramayya (1880) 3 Mad.. 15,
Minakshi v Ramanada (1888) H Mad, 49, FB

ih) Ramachandra v Copal (1908) 32 Bom., 619, Walbai \

Ilecrbai (1911) 31 Bom, 491, Yamnavu v Laxman (1912) 36 Bom
533, Subrao v Radha (1928) .52 Bom. 497

(i) (1912) 36 Bom, .533 supra

{]) Ramknshna v. Chimnaji (1915) 15 Bom. L R., 824
{k) Gajanan Balkrishna v Kashinath Narayan (1915) 39 Bom
410

(/) Mallappa Barappa \ Gangnva (1919) 43 Bom , 209
(m) Sitabai v Parvatihai (1923) 47 Bom., 35
(a) Shripad v. Vithal (1025 ) 49 Bom, 615,

f»\RAS. l76-I7o. I

nHO MA\ Hh \l)OPTKI)

247

prohibited degiees This luie must, of couise, be under-

stood as excluding only the sons of a woman whose original
lelationship to the adopter was such as to render her unfit to
be his wife. A man could not lawfully marry his brother’s
or nephew’s wife, but a brother’s son is the most proper
person to be adopted, and so is a grand-nephew ip) A
wife’s brothel, or his son. may be adopted (r/). and so ma\
the son of a wife's sistei (/). or of a maternal aunt’s
daughter (5)

§ 177. Quite recently, the Calcutta High Court has, after
a full examination of all the authorities, dissenting from the
Bombay High Court and agreeing with the Madras High
Court, affirmed the lule that a Hindu of the regenerate classes
( annot adopt a peison whose mother the adopter could nol
have legally maiiied and held that the adoption of a biothei's
(lauglitei’s son is invalid imdei the Bengal school also(/)

§ 178. The* lestiictive lule applies to the three higher
( astes but nol to the Sudias(u). The lattei may adopt a
daughter’s or sister’s son According to the Mavukha thev
arc the most propel to be adopted {v) \ rnothei's sisleTs

son may also be adopted among Sudras (w) In the Pimjal)
such adojitions die (omnion among the Jats, and this laxity
has spicad even to Brahmans, and to the orthodox Hindu
mhabilants of towns, such as Delhi (a) and to the Boi ah
Brahmins in the United Provinces [y). Thev are also pei-

(o) Moothia \ Uppen (1858) Mad SD, 117, Lnl Hanhar \
rhuhu liajraufT \IR 1937 P('. 2t2

(p) \f()nin VIocc v Bojo) WR Sp , 122

(q) Kristnicngai v. V anamamalm Mad Dei of 1856, 213, Runga-

naigiint v \nm* srroya Mad, Dec of 1857 94, Rutce Bhudr ^

Rna^hunlvr 2 Boi., 56 (713). Sntamulu v. Rama\\(t 1 1880) 3 Mad
15 B(u iSani v Chunifal (1898) 22 Bom, 973

(/) Baee Gunga v Baee SheoLooiar Bom. Se] Rep, 73 76
(s) Venhata v Siibhadrn (1881) 7 Mad .548
(/) Hniidns Chatterjee v. Manmathanath Mukherji 119371 2 Lai
265, dissenting horn Haran (.bunder v Hiinoo Mohan (^.hur kerbutty
(1881) 6 Cal., 41

(u) Raj Kooniui v. Bissessur (1884) 10 Cal., 688, Subrao \ Radhii
(1928) .52 Bom, 197 Kalappa v Shivappa AIR 1938 Bom, 132,
,19 Bom. L.R., 1282 (smter’s son), Bhagwan Singh \ Bhagtvan Singh
(1899) 26 I A. L5.3, 160, 22 ML 112, 418; Mahiajah of Kolhapur
V. Sundaram (1925) 18 Mad. 1. hhu'an Prasad v Rai Han Prasad
(1927) 6 Pat., 506

iv) V. Mayukha. tV, 5 § 10, 11.

(w) Chmna Nagayya \ Pedda Aagayya (1878) 1 Mad, 62.

(;c) Punjab Cusl , 79-83, Punjab Customary Law, II, III, 1.54, 205,
210; Rup \arain v Gopal (1909) 36 I.A., 103, 36 Cal , 780
(\) Cham Sakh Ram v Parbati (1892) 14 All., 53.

( aliMitta.

Rules not
universal
Sudras.

(^usiom

248

LAW OF ADOPTION

[chap V,

Extension
by Nan da
Pandita
rejected.

mitted anion" the Jams (cj In Southern India, e\en among
the Biahnians, including Namhudn Brahmans of Malabar,
such adoptions arc undoubtedly common and aie \alid b\
custom (n). In the United Provinces, the adoption of a
*^te})-bI other is allowed among the unregenerate classes
and among the Borah Brahmans ev^en a sister’s son may be
adopted (/;) So also it w^ould seem in the Deccan a younger
brother inav be adopted, and. though the adoption of uncles
IS forbidden, a different lea^-on is alleged for the prohibi-
tion (c). Amongst Purbia Kiirmis who have adopted the
leremonv of the iiuestitiue with the sacied thread, an adoption
within the piohibited degiees of relationship is valid ( d I
Theie is also a custom recognising the validity of the adoption
of a daughtei's son among the Khatiis of the town of
\miitsar (c) and among the Deshastha Sinarta Brahmins in
Dharwar distiict of the Boniba\ })ro\incc(/l

S 179 A singular extension was given -to this lule b\
\anda Pandita Accoiding to him, a widow could adopt
onl\ th(‘ son of a jxnson whom she could ha\e legall\ maiiicd
and th('iclo»e she (ould not adopt her biothei's son (g) This
view' has now been linally pronouincd against by the Privy
(Council as an unwaiianted extension not based on the
authoiitv of any of the SinritislA) I’oi the adojitiori by
t!i(‘ widow IS not an adoption to herself but is an adoption
to her di'ceased husband The test of eligibility foi adoption
in such a case is the test which would have applii'd. had the
adoption been made by the husband himself m his lifetime

(j) Shco \ Mt Dakho (1878) 5 I A , 87 1 Ml, 688 affirm

ing 6 N W P ,>82 Hassan 'lli \ Nagnmmai (1878) 1 All, 288,
Lakh nil (Jiand \ Datto Bai (1886) 8 All, 319

in) \ aMilnuuhi \ 4p]m (1886) 9 Mad, 44, Vishnu v Krishnan
(1884) 7 Mad, .3 (FI3), per curiam (1888) 11 Mad, 55, Appayya

V Vengu (1905) IS M L I , 211, (adoption of brother’s daughter’s von)
Sooratha Singa \ Kanaka Singa <1920) 43 Mad, 867 (the adoption
of lirothei's daughtei's son among tlie Rajputs of ‘south (^anari is
allowed hv custom) \ isvasnndara Row v Somasundara Row (1920)
43 Mad, 876 (daimluer's son’s adoption valid among Telugu Brahmins
in Madras)

(6) Phiindo V Jangi Nath (1893) 15 All, 327 Cham Sukh Ram

V Parbati (1892) It All, 53

(r) Steele, 41 fhiehut Rao v Govindrao 2 Bor, 85, MaJlappa
Parappa v Gangaia (1919) 13 Bom 209, V N Mandlik, 474, 495,
W & B , 912, 913

id) Jivan Lai v Knllumnl (1906) 28 All, 170
(e) Parmanund \ ^hiv Charan (1921) 2 Lah , 69
(/) Sundrahai v Hanmant (1932) 56 Bom , 298
(g) Dat Mima, TI, §§33, 34

ih) Puttu Lai V Parhati kiinwar (1915) 42 I A , 155 162, 37 All
359 app fai Singh v Rijai Pal (1905) 27 All, 417,

PARAS. 179 - 180 .]

IJMIT OF AGE

249

As there can be a valid marriage in cases where the relation-
ship arises from mere affinity as distinguished from
consanguinity, though it be viriiddhasambandha or contrary
relationship, so too a man can validly adopt the son or the
daughter’s son of his wife’s sister ff).

§ 180. A further limitation upon the selection of a son
for adoption arises fiom age, and from the ceremonies pre-
viously undergone by him in the natural family (/).

Accoiding to the Dattaka Chandrika, the age of the boy to be
adopted is only material as determining the time at which
upanayana may be performed. So long as this rite in the
case of the three higher classes, and marriage in the case of
Sudrab, can be pci formed in the family of the adopter, there
IS no limit of any particular time (A;).

It is now settled in all the pro\inces except Bombay that
in the case of the three regenerate classes, the adoption of a
person is valid, if made before upanayanam, and if he belongs
to the Sudra caste befoie marriage (Z). In Madras, custom has
engrafted upon the rule an ex( eption ac( ording to which the
adoption of a boy of the same gotra even after his upanayanam
tereinony has been peiformed in the family of his birth is
valid but not after his marriage im). By the general Hindu

(/) Raghaventlra Row v Jayarama Rao (1897) 20 Mad, 283, see
dbo Ramahtishna Roil v Snbbamma Row (1920) 43 Mad, 830

(;) A*' to the eight ceremonies for a male, ‘^ee Colebrooke, note
to Dat Mima, IV, §23, Dij? , II, 301 Of these tonsure is the fifth,
and upanayana or investiture with the sacied thread, is the eighth
The foirner is performed in the second or third year after birth, the
latter, in the case of Brahmans, m the eighth year from conception
But It may be peiformed so early as the fifth, or delayed till the six-
teenth year The primary perio<Is for upanayana in the case of a
Kshatriya are eleven, and of a Vaisya twelve years, but it may be
delayed till the ages of twenty-two and twenty-four respectively For
Siulids there is no ceremony hut mairiage See Appx 1

ik) Dt Chaiul, II, §§20-33, 1 W. MacN 72; the Dattaka

Mimamsa however states that one who has had his tonsure performed
m the family of his birth ought not to be adopted nor one who ih
more than five years old, but that the rule as to the tonsure may be
got over by the performance of rites and that the performance of
upanayanam in the natural family is an absolute bar IV, 30-56

(/) Ganga Sahai v. Lekhraj (1887) 9 All, 253, 328, Jhunka
Prasad v. Nathu (1913) 35 All. 263; Raja Makiind Deb v Sri
Jagannath (1923) 2 Pat., 469, Chandreshwar v. Bishweswar (1926)
5 Pat., 777, Gopinath v. Mt Kishni AIR 1927 All, 634

(m) Ramaswami lyen v Bhagavati Ammal 8 Mad Jur , 58,
Viraraghava v. Ramalinga (1886) 9 Mad., 148, F.B , overruling

Venkatasaiya v V enkatacharlu (1867) 3 Mad. II.C , 28, Pichuva'sy/an
V Siibbayyan (1890) 13 Mad, 128, Kamay\a Bhukta v China

Sooranna A.I R. 1934 Mad. 48, 1933 MWN., 149 So also among
Kashmiri Brahmins in the Punjab by family custom, Durga Devi v.
Shambu Nath (1927) 51 l.A , 182, 5 Lah., 200,

Limitation
fiom age

Dattaka

Chandrika

250

L^y^ OF AI)OF^IO^

[chap. V.

Weslei II
India.

law applicable to the twice-boin classes, a boy cannot be
adopted after his marriage, except b\ custom (/i) Even
among Sudras. adoption of one after his marriage is altogether
invalid (o). In a case in Madras, the Court held that an
adoption of an unmarried man of the Sudra caste aged fort\
was valid (p)

§ 181. In Western India, a man may be adopted at an>
age, though he rnav be married and have children, whethei
he belongs to the same or another gotra This lule
applies to all the foui castes ( q ) Nilakantha says “And my

father has said that a mained man, who has even had a son
born, may become an adopted son”lr) Mr Steele states
“the Poona Shastries do not lecognize the necessitv that adop
tion should precede ntoonj and mamage*. and that “thcnc
no limit as to age* The adoptee should not be oldei than
the adopter” (.st On an adoption ol a mained man v\ilh
children, he alone loses his gotra. his son docs not cease to
be a member of the natiual familv, oi lose his interest theiein
His wile however (ollows the husband into the familv of his
adoption (/) \ son conceived before but boi n after the*

adoption passes into his adoptive familv < // >

It has been held bv the Bombav Higli Com I that a man can
adopt a son oldei than himself on the giound that the iiile as

(7?) Lai Rup ( hand \ latnhu Prasad (1910) ^7 F A , 9:J 103 32
All, 247, 252

(e) I aithilinaa \ I ija\afhamtnal <108i) 0 Mad 1> (1890) 13

Mad, 128, 129 supra Luigayya v (.hengalaniniat (1925) 48 Mad
107, Janahirani Pilla\ \ I vnkiah Chatty (1911) 10 M L 'P , 21 (1887)

9 All, 253 supra, Jhunha v Nathu (1913) 35 All 263, Raja Sonia
sekhara v Raja "^ugattui Mahadeva (1936) 70 Mb. I 159 PC A l.R
1936 PC , 18

ij}) Pajianuna \ Apjai Ron (1893) 16 Mad 384 396

(g) I ija\singji \ Shnsingji (1935) 62 lA, 161, 163, 59 Bum,
160, Rajo Minibalhat \ Javavantrav (1867) 4 Bom. H.C, (ACJ ), 191
Nathaji v Han (1871) 8 Bom PI C^ (AC.J ). 67, Sadashiv \ Han
Moreshvar (1871) 1 1 Bom II C. . 190, Dharma v Ramaknshna (1886)

10 Bom, 80, (lOj)al \ Vishnu (1899) 23 Bom, 250 Amon^ the
Nambudri Brahmin^ tlie power tu adopt a manied man appeals onlv
to exist when tin* adoption of the Kritiima form \ asudantu s
The Secretary of ^tate for India (1888) 11 Mad, 157, 178

(r) V May, 1\ 5, §19 His fathei was Shankara Bhalla authoi
of the Dvaita Nirnaya, a work of special authority in the Deccan
Nathaji v Han ( 1876) 8 Bom H C ( A C J ) , 67

(s) Steele, 44, 182, \ N Mandhk. 471, 1 W MacN , 75

(r) Kalgavada Taiariappa \ Soinappa Tamangavada (1909) 33

Bom , 669

(u) Advi bin hakirappn v, Fakirappa Adiveppa (1918) 42 Bom.

547 .

PARAS. 18M82.I

MFl AND ACCEPTANCE

251

to age IS oiilv recommendator\ But the learned Judges
themselves admit that “it is rontraiy to the lecognised notions
of Hindus as to adoptions and to the fundamental idea of an
adopted soif* (v) and this view would seem to be opposed
to the opinion of Kanade, J. (u’l as well as to the views of
VIr. Steele and Mr Mandlik.

In the Punjab, there is no lestnction of age(rcj. For Punjab,
undei the Punjab customaiy law, there is no religious signi-
ficance attached to the appointment of an heir (y). Amongst
the Agarwalla Jains, the limit of age extends to the thirty-
second year iz) And amongst the Jains generally, a married
man can be adopted (a)

§ 182. Fourth, the ceremonies necessary to an

ADOPTION : —

The texts of Vdsishtha. Baudhaydiia and Saunaka already
lefeiied to outline the ritual in (onnection with adoption. Rnual
The Dattaka Mimamsa and the Dattaka Chandrika give an
enlarged account of il (6). In all these, stress is laid upon
I he gift and acceptance of the boy taken in adoption.
Baudhayana says. “One should go to the giver of the child,
and dsk him, saying. "Give me thy son’. The other answers
*I give him’. He receives him with these words, ‘I take thee
for the fulfilment of in\ religious duties I take thee to
< ontiniie the line of my ancestor.s’ ” (c)

1lie giMiig and leceiving are absolutely necessary to the (,ivinj; and
validity of an adoption. They are the operative part of the receiving
cerenionv. being that pail of il which transfers the boy from

(r) Balabui \ Mahadu (1924) 45 Bom., 387, 389.

lie) While ddniittmji the lule that the adopted son should be
vouiigei than tlie adupting father, Kanade, J , thought that the rule
-should not be extended to his widow who makes the adoption on hi**
behalf Gopal v. Vishnu (1899) 2.^ Bom . 250. 256.

1 x) Punjab Custom, 82.

(y) Ranihishorv v Jainannana (1921) 48 I.A., 405, 413, 49 Cal,
120, 1,30.

Ic) Dhanraj v Sonibai (1925) 52 I.A., 2.U, 242, 52 Cal, 482

(a) Pntcheurn v. Soojun 9 Mad Jur, 21, cited in Sheo Singh v
Mt, Dak ho (1878) 5 I.A , 87, 1 All, 688; Lola Rupchand v. Jambu
Piasad (1910) 37 I.A, 93, 32 (^al , 247; Sheo Kurbai v. Jeoraj (1920)
25 C.W.N.. 273 (P.C.) , Manohar Lai v Banarsi (1907) 29 All., 495.

{b) Vas, XV, 6; Baudh , VII, 5. Dat Mima., V, 2, 42, Dal
Chand., 11. .See also Mit.. 1. 11. 13.

(c) Baudh., II, 7-9.

252

LAW OF ADOPTION

[chap. V.

iJatta
horn (I m

No lelijiioMS

reremonips
foi Suditis

one family into anothei (r/l Where this pait was performed
hv the widow, a girl of fifteen who had just lost her husband.
It was held to be no objection to the adoption that she remain-
ed m an inner room, and deputed a relation to perform the
honiam and other [larts of the leligious ceremony le). and
even the plivsnal act ol gi\ing aw'a\ ma\ be similarU
delegated b\ a j^erson who would be entitled to perform the
act himself (/( Kven in (ases where gi\mg and receiving i^
Milficient then* must be an arlual gift and acceptance of the
])()\ m adojilion Ig) A meie execution of a will oi deed of
adoption or oral declaiatioiis ol intention will not be sulTicierit
to (onstitute a valid adoption \/i)

Avoiding to the Dattaka Alimamsa and the Dattaka
Chanel Ilka, the datta hornam or oblation to fire is the most
iinpoitant rite in the case of lb(‘ three higher (lasses and is
necessaiv to the establishment of filial i elation “It is
fherefoie. established that the filial relation of adojited sons
IS occasioned onlv b\ the (proper) ceremonies Of gili,
acceptance, a biiint sacrament, and so forth should either be
wanting, the filial lelation even fails" (i)

^ 1()5 It IS now settled that amongst Sudras no cere-
monies such as datta homam are necessary m addition to th(‘
giving and the taking of the (hild m adoption (;). So also
in the Punjab and among the )ams. no ceiemonial whatever

((/) Mahashaya l^hosinath v Srimathi Krishna (1881) 7 I A, 250,
6 Cal, 381, RaimdimMiKarnnia \ Ahvar Setti (1890) 13 Mad. 214,
Bircshwar \ Aidha (1892) 19 1 A , 101. 19 Cal, 452, Balah Ram v
i\anun Mat (1930) 11 Lali 503

(c) Lahshnubai \ Ranu harntra (1898) 22 Bom, 590, Santappayya
Ran/aappayya (1895) 18 Mad, 397

(/) Shamsinah \ Santabai (1901) 25 Bom, 551

(fi) (1881) 7 1 \ 250, 6 Cdl, 381 supra, (1890) 13 Mad 214

supra, (1892) 19 lA 101, 19 C\d . 452 supra

(/?) Srcenarain Mittcr v Sreemiitty Kishen (1869) 2 BLR

(A(^J ), 279, 11 WR, 196, on appeal Srecnarain v Sreemiitty (1873;
f A ‘^iip \o] 179 (1881) 7 1 \ , 250 6 Cal, 381 supra, V isivanatha

Ramji V Ratiibai (1931) 55 Bom 103 108, 109, Parasram v Pamabou
(1938) 40 Punj LR, 49

(0 Dat Mima., V, 50, 56. see also Dat Chand , II, 16 17, VI, 3

(/) Indramom v Behan halt (1879) 7 I A, 24, 5 Cal, 770,

Shoshinath v Krishnasiindcri (1881) 7 I A, 250, 255, 6 Cal, 381,
Veeraperumat Pitlai v Narain Pillai ^tra Notes of Cases, 117

Thangamanni v Ramu Mudali (1882) 5 Mad, 358, Govindayyar v
Doraiswami (1888) 11 Mad, 5, F B , Asita Mohun v Nirode Mohun
(1916) 20 C,W N , 901 (Ka>astha‘5 of Bengal),

PARAS. 183-184. J

lUn ahomam.

253

IS required, the transaction being regarded as a matter of
civil contract (k).

§ 184. Amongst the twice-born classes, the performance
of datta liomam ceremony is not essential to the validity of
an adoption where the adopted son belongs to the same
gotra as the adoptive father (/). Whether amongst the twice-
born classes in other cases datta hornam is or is not absolutel)
essential to the validity of an adoption is not finally settled.
In Bengal, it has been held that datta hotnarn is indispensable
to a valid adoption among the three superior classes (/^). In
Smgamma v. V enkatarharlu, it was held that the ceremony of
datta hornam is not essential to an adoption among
Brahmans in Southern India (m) In Chandra Mala v
Muktaniala^ ihe same iiile was applied to Kshatiiyas
Aluthusw^ami Ayyar, J.. in the latter case said that if he weie
not bound by the decision m Singamrnas case, he would feel
ccnsiderable doidit in holding that the ceremony of datta
honiarn is not essential to a valid adoption among the three
higher classes (n) In Covindayyar \ Doraisami, the judge*-
inclined to the view that datta hornam may be an essential
pait of a valid adoption as a general lule (o) In Sankaian

(A) Punjab Cubtoins, 82, Punjab Customary Law, 111, 82 Lakshni'
t hand v. Gatto liai (1886) 8 AIL, 319 Among the Moodelliars of
Northern Ceylon, the only ceremonial appears to be the drinking of
-affron water by the adopting person Thesawaleme, 11.

it) Hal Gaiigadhar TdaL v Snmvas Pandit (1915) 42 I A, 135,
39 Bom, 141, Retki v Lakpati Piryari (1915) 20 C W.N., 19(20;,
Govindayyar v. Doraiswami (1888) 11 Mad., 5, F.B., Valubai v. Govind
(1900) 24 Bom, 218, I edavalh v Mangamma (1904) 27 Mad, 538
539 (last para), Sumati Lakshmipati v. Udit Pratapungh (1918)
3 Pat LJ, 499, Aynia Ram v. Madho Rao (1884) 6 All, 276, F.B.
(In Allahabad, among Dakhani Brahmaiib a gift and acreptance !<-
sufficient when thi* boy was the ^on of a daughlei or of a lirother)
The case of the daughtei s son stands by itself and must rest on the
authority of decisions, following Kama's Uxt, the suggestion in (1915)
42 I A, 135, 39 Bom, 441 supra, that it la merely an instance of the
geneial rule as to meinbeis of the same gotra, being founded on a
misconception daughtei s son obviously cannot be a menibci of

the same gotra as the father.

(/i) Alank Manjari v Fakir Chand 5 S.D . 356 (418); Biilliibakant
V. Kishenprea 6 S.l)., 219 (270), Luchmun v. Mohun 16 W.R., 179,
Mahashaya Shosinath v Siiniathi Kribhna (1881) 7 lA, 250, 256,
6 Cal. 381; see, too. Thakoor Oomrao v. Thakooranee N.W P.H.C.
(1868), 103.

im) (1868) 4 Mad.H.C, 165.

(n) (1883) 6 Mad, 20, 24.

(o) (1888) 11 Mad., 5, F.B., 10, The Privv Council in (1915)
42 I.A., 135, 150 supra undtrstood this decision as affirming that the
ceremony of datta hornam is not essential to a valid adoption among
Brahmins in Southern India.

Twice-born

classes.

254

LAW OF ADOPTION

jCHAP V.

Pondicherry

Datta homam
may be
postponed

Doctrine of
factum lalet

V. Kesavan ip), it was apparently considered that datta
homam was not essential among Nambudns, but that was a
case of dwyamushyayana form and cannot be treated as an
authority on the general question In Venkata v. Suba-
dra (q)^ Turner, C J and Muttiiswami Iyer, J expressed the
opinion that datta homam is essential among the Brahmans
agreeing with the Calcutta High Court In Ranganayakamma
V Aiwa? Chetti (r), the Court decided that datta homam was
necessary in the absence of usage among the three twice-born
(lasses Finally in Subbarayar \ Subbammal (s), the Court
treated datta homam as essential to a valid adoption amongst
Brahmans In Bomba}, datta homam is necessary amongst
Brahmans (/)

The Pondicherry Couit has repeatedly laid down that the
performance of the datta homam, and the accompanying rcli-
guiiis ( erenionies, is es^sential to the validity of an
adoption (u)

The result of the aulhoiilies seems to he that amongst the
twice-born classes and especially amongst the Brahmans, the
datta homam is necessai), unless the adopted son is of the
same gotra as his adopter, or unless a usage to the contrary
IS established

^ 185 The ceiemony of datta homam mav be pei formed
either at the time of the gift and acceptance or afterwards
ft can be performed after the death either of the natural
father (v) oi of the adoptue father (u;)

^ 186 The limits within which the lule of Quod fieri non
debet factum valet can be applied aie now finally settled
'“'Its piopei application must he limited to c asc*^ in which
there is neither yyanl of authonty to gue noi to accept, noi
imperalne intei die lion of adoption fn ( a*^es m yvhich the
Shaslra is iiieieh duectorv and not mandatory, or onlv
indi(alcs pailii ular pcisons as more eligible foi adoption than
otheis lli(‘ maxim may he* uselully and pioperU applied, if

(p) (1892) 15 Mad. 7
iq) (1884) 7 Mad., 548
(r) (1890) 13 Mad., 214

is) (1898) 21 Mad, 497

it) Govincl Prasad v Rindabai (1925) 49 Bom., 515
ill) Sorg. H.L, 133, Co-Con, 110, 170, 374

iv) Venkata v. Subfiadra (1884) 7 Mad, 548

{w) Subbarayar y. Subbammal (1898 ) 21 Mad, 497, Seethf^
ramamma v Suryanarayana (1926) 49 Mad, 969.

P\H\ 186 I

F^dlJM VAUET

255

the moral pieeept or i ecommended preference be dis-
regarded” (x),

111 an Allahabad case (y). where ail the previous decisions
were reviewed by Mahmood^ J.. he said: ‘‘Adoption undei
the Hindu Ian being in the nature of gift, thiee mam matters
eonstitule its elements apart from questions of form The
capacity to the capacity to take, and the capacity to

be the subject ol adoption, seem to me to be matteis essential
to the validity of the transaction^ and, as such, beyond the
provnue of the doctrine of factum valet'' And similarly, in
a case wheie the Judicial Committee had to consider the appli-
cation ol this maxim to the adoption of an only son, thev said*

■‘If a transaction is declared to be null and void in law.
whether on a leligious giouiid or another, it is so, and if its
nullity IS a necessaiy implication fiom a condemnation of il
the law must be so declaied. Hut the rneie fact that a trans-
action is condeiyined in books like the Smritis does not
necessaiily prove it to be void. It raises the question, what
kind of condemnation is meant*" (cr)

In ac'coi dance with these rules, the piineiple ol factum Application
valet has been held to be ineffectual where the son was given of the<ie rules,
or received liv a mother who w'as destitute of the necessarv
authority (aj. or where the boy taken in adoption was one
whose mother in hei maiden stale could not have been niarned
bv the adopting fathei {b) And similarly, il has been held
that the ado]>tion of an orphan givcni away b\ his eldei brother
IS invalid and the doctrine of factum valet cannot be invoked
ill Its suppoit (r) The rule has been applied where a

pieferential relation has been passed over in favour of the
son of a stranger \d) . oi w^here the limit of age hxed bv the

{x) iMkshmappa v Ramavn (1875) 12 Bom. H.C., 364, 398,

approved and followed, per curiam, Gopal v Hanmant (1879) 3 Bom,
273, 293, Dharnia v. Ramknshna (1886) 10 Bom, p. 86, and by the
Judicial Cummitlee in Sn Balusu's rase (1899) 26 I.A., 113, 144, 22
Mad., 398, where they say “The truth is that the two halves of the
maxim apply to two diffeienl department'- of life." Kunivar Rasant \
Kuniiar Hrij Raj (1935) 62 I A , 180, 57 All, 194

(> ) Ganga Sahai v Lekhraj Singh (1887) 9 All., 253, 297

( 2 ) Sn Baliisu's case (1899) 26 I.A . 113 139, 22 Mad.. 398, 419
See ante § 21.

(a) Rangubai v Bhagirthibai (1878) 2 Bom., 377, l\ara\an Babaji
V. Nana Manohat (1870) 7 Bom HC (A.C.J.), 153

(b) Gopal Naihar v Hanmant Ganesh (1879) 3 Bom, 273, Han
Das Chatter ji v. Manmatha Nath \lallick [19.371 2 Cal., 265.

(c) Bashcttiappu \ Shiihngappa (1873) 10 Bom H.C., 268,

}Iare\)a v. Romulakshmi (1921) 14 Mad., 260.

id) Vma I)e\i v. Gokootamind (1878) 5 T.A., 40, 3 Cal., 587.

256

LAW OF ADOPTION

[chap. V.

Dattaka Mimani&a has been exceeded (ej Wheie the per-
formance of datta honiam is essential, its omission cannot be
( ured by the application of faituni lalet

^ 187 Fifiii, Results of Adoption. —

Texts on the
subject

Complete
substitute for
aurasa son.

The texts on the subject aie faiily comprehensive and ( Icar
The Mitakshara follows Manu, who makes the adopted
son the heir not only to the adoptive father but to
his kinsmen as well (/) The Dayabhaga citing Devala
might on a prima jacie view be taken to have named the
adopted son in the second six of the twelve secondai) sons
But It would seem that The fust six’ who are mentioned
as heirs to kinsmen in the Dayabhaga (X, 8j refers to
the Tirst six’ accoiding to the classification immediatelv
preceding and not to The fust six' aicoiding to tlic older of
enumeration On that view the adojitcd son conics within the
first six of the twelve secondaiy sons and js an heir to the
adoptive father's (ollateials as well (g) Manu makes the
tiansfer of the achipted son from the naluial family to the
adoptive family ( omplete, by declaiing that **an adopted son
shall never take the family name and the estate of his natural
fathei . the funeral off ei mgs of him who gives his son
in adoption cease as fai as that son is conceined'’ (/i). The
Dattaka Miniamsa and the Dattaka Clianclrika expressly lav
down that the adopted son is a substitute foi a leal legitimate
son both foi pui poses of mheiitance and foi purposes of
funeial oblations, and that he is a sapinda to the members ol
the adoptive familv and that the forcfatheis of his adoptive
mothei aie his ‘’maternal giandsires’ (7) It is now settled
that “an adopted son ocampies the same position, and has the
same lights and jirivileges in the family of the adopter as the
legitimate son. except in a few specified inslaiiees . The
theoiy of adoption depends upon the piinciple of a complete
seveianee of the child adopted from the family in which he is
born, both in ic'spect to the paternal and the maternal line,
and his complete substitution into the adoptei’s family, as if

(e) Ganga bahai v Lekhraj Smgh (1887) 9 All, 253
if) Manu, IX, 141, 159, Mit , I, XI, 31

(g) D Bh X, 7, 8, ^ce the note giving Sn Krishna’s comment
on X, 7 and Puddo Kunuiree v Juggiit Kishore (1880) 5 Gal, 615,
630

ih) IX, 142.

ii) Dat. Mima., VI, 50 53, Dat Ch . Ill, 17. 20. V. 24

PARAS. 187.188.1

EFFECT OF ADOPTCOiN

257

he were born in it” (y). It follows that an adopted son is
“the continuator of his adoptive father’s line exactly as an
aurasa son, and that an adoption, so far as the continuity of
the line is concerned, has a retrospective effect” (k). The
excepted instances relate to marriage and to the competition
between the adopted son and an aiuasa son subsequently
born to the same father (^). While adoption completely
transfers the adopted son to the adoptive family as regards
legal lelationship and he loses all rights in the family of his
hath, it does not sever the lie of physical blood relation-
ship (/).

§ 188. An adopted son is entitled to inherit not only to
his adoptive father, but to the lineal ancestors of the latter,
just as if he were his natural born son (/n ) So also he is
entitled to inheiit to the adoptive fathei’s collaterals, whether
the latter are related to the former through males only, oi
through females* (/?) . Conveisely, the adoptive father and his
relations aie entitled to inherit to the adopted son as il he
were born in the family.

It is equally well-settled that an adopted son has all the
rights of a natuial-born son in the maternal line as in the
paternal line and is thciefoie entitled to inherit to his
adoptive mothei and her lathei and then relations lo). The
adopted son of a daughter has aicoidingly been held to share
equal Jv With the legitimate son of another daughtei the inheiit-

(;) Per Miller, J., m lima Sunker v. Kali Komul (1881) 6 Cal..
256, F B., 259 260, ciled with approval by the Privy Council in
Nagindas Bhugiianclas v Bachoo Hiuhissondas fl916) 43 I.A., 56.
68, 40 Bom., 270, 288, and in Raghuraj Chandra v. Subhadra (1928)
55 I. A., 139, ]48, 3 Luck, 76.

(A) Pratap bingh \ Agaisingjt 1.1919) 46 I A., 97, 107, 43 Bom.,
778, 792, see also Banana Dai v. Sumat Praiad A.I R. 1936 All, 641.

(/) Lai Harihai v. Thahur Bajrang A.l.R. 1937 P.C., 242, (1937)
II ML J, 711, 714

im) Dat Mima, VI, 3, 8, Dat. Chand., V, 26, III, 20, Gourbullub
V. Jaggenoth F. MacN , 159, Mokundo v. By hunt (1881) 6 Cal., 289.
Sir F. MacNaghten was of opinion that an adopted son in Bengal was
even in a better position tlian a natural-born son, as having an in-
defeasible right to his father’s estate, which a natural-born son would
not have. F. MacN., 157, 228. This opinion was rejected by the Privy
Council m Venkatasurya v Court of Wards (1899) 26 LA., 83, 22
Mad., 383.

in) Pudnia Cooniari v. Court of Wards (1882) 8 LA., 229, 8
Cdl., 302, Chandreshwar v. Btsheshwar (1926) 5 Pat., 777.

(o) Kali Komul v Vma Sunker (1884) 10 I.A., 138, 10 Cal., 232,
Sham Knar v Gaya (1876) 1 All, 256, FB.; Dattatraya v Gangabai
(1922) 46 Bom., 541, Sundaramma v. Venkatasubba Iver (1926) 49
Mad, 941, Sown that apandian v Periaveru Thevan (1933) 56 Mad.,
759, F B.

19

Lineal

succession.

Collateral

succession.

Succession
ex parte
materna

258

LAW OF ADOPTION

[chap. V.

Adoption bv
a widower

aiice left by his maternal grandfather (p) Conversely, the
adoptive mother and her relations are entitled to inherit to
the adopted son {q). Where a man died leaving an adopted
son and an after-boin aurasa son bv different wives, both
were held entitled to the stndhanarn properties of then
step-mother, as their fathei's sapindas, in default of hex

issue (r) .

^ 189 Wheie a man adopts a son after his wife’s death,
the son adopted w'ould seem on principle not to be her

adopted son Evidently, the Hindu Law of Inheritance

I Amendment) Act, 1029, pioreeds on that view when it
declares that ‘a sister’s son’ shall not include a son

adopted by the sister’s husband after her death ( 5 ) The
Act was after the decision of the Madras High Couit in
Sundararnma v Venkatasuhba Ayyaf (t) which took the other
view This decision has since been appro\ed bv a Full Bench
in a recent case (w). Areoidnig to these decis'Ions. the adojited
son of a man who is a widower, becomes the son of hi^-
deceased wife so as to inherit to her relations in hei father's
family The Full Bene h dc*c ision pioc ceded upon the gtound. a->
to which there can be no doubt, that the term 'ptati^nhiti iniCitn
in ihe Dattaka IVliniamsa, \ 1. 30^ and the Haltaka (^handiika
III, 17, means onl\ an adoptive niothei and not the niothei
who actually leceives thc‘ hoy in adoption The dec ismn, so
far as it laid down that an adoption by the husband, whethei
the wife consents 01 not. makes her legally the mother of the
adopted son, is unexceptionable As was said by Shephard, J .
“It IS only consistent with this theory (of adoption) that the
wife of the adoptive fathei. if there happens to be one^ should
also be deemed the mother of the ho\’' {id ) The leal difiicultv
however lies elscwhcic where a person has no wife m exiM*
ence at the date of adoption, can his deceased wife lie said to
he the adoptive mother‘d This c]uestion recjuiies much more
eonsideiation than il has rec'eived. Where an adoption is
made bv a widow, it 1 elates back to her husband’s death, but
where the adoption is made bv a widower, theie is no reason

(p) burjokant Nundi v Mohesh Chunder (1883) 9 Cal, 70.
iq) Annapunu Na(hiar v Forbes (1899) 26 I A , 216, 23 Mad, 1,
affg (1895) 18 Mad, 277, Basappa v Giirlingawa (1933) 57 Bom , 74

(r) Gangadhar \ Hira Lai (1916) 43 Cal, 944

( 5 ) Sec 2 proviso

(t) (1926) 49 Mad 941

iu) Sountharapandian v Periaveru Thevan (1933) 56 Mad 759,
FB

(Ml) (1895) 18 Mad., 277, 287, supra

J^ARAS. 189-190 I

WHO IS ADOPTIVE MOTHER.

259

or principle why it should date back to an earlier date such as
the death of his wife. The Dattaka Miniamsa contemplates a
living wife and not one who is dead. It is imposing a fiction
upon a fiction to say, either that the wife must be deemed to
be alive at the date of the adoption, or that the adoption
should relate back to the moinenl of her death For the

legal fiction of maternity, there must be a wife in existence at
the time of the adoption to whom the law can point as the
mothei. Foi the adoption is to the husband, and not to her.
But “in consequence of the superiority of the husband, by his
mere act of adoption, the filiation of the adopted as son of the

wife. IS complete in the same manner as her property, in

any other thing accepted by the husband” iv). This passage
IS conclusive to show that the acquirei of the propeity in the
son must be a living person. So too, if a bachelor makes an
adoption as he is entitled to do, the fiction of maternity has
no scope and it^is impossible to constitute the wife he nw
marry thereafter, as the legal mothei of the adopted bo)
She might not have even been in existence at the date of
adoption. The simpler and moie logical conclusion appeals
to be that a person can be the mother of the adopted boy

when she is in existence as a wife at the date of the

adoption, whether oi not she consents to it.

§ 190 Wheie a man has two wives and associates one
of them in the adoption of a son, that wife is the adoptive
mother, the othei being only the step-mother. In Kabhishuree
Debia v. Gieesh Chiuule/, where the wife so selected was the
second wife of the adopter, and the adoptive mother died
before the adopted son. it was held that on his death the
eldest widow was not his hcii as mother, being only a step-
mother, and that the succession went to a nephew of the
husband in) . This decision was approved b) the Judicial
Committee on an appeal fiom Madras. There, the holdei
of an impaitible estate made an adoption in conjunction
with his second wife, the first wife having ceased to live
with him. Aftei his death the adopted son succeeded, and
it was held that on his death the wife who was associated
in the adoption was his adoptive mother and heir, and not
the senioi widow. The Judicial Committee observed that
a man may authorise a single one of seveial wives to adopt

iu“) Rame&ani, J.’s dictum in (1933) 56 Mad, 759, F.B.. 763,
“Noi IS there any need to rely on any theory of the adoption relating
back to Kothai AmmalV lifetime” proceeds upon a misconception

(v) Dat Mima, I, 22.

(m;) F. MacN., 171, 1 W. MacN., 11, Kashi6huree Debia v Greesh
Chunder W.R Jan.-Julv, 1864, 71.

Which wif(
IS adoptive
mother.

260

LAW OF ADOPTION

[chap. V.

Rights in the,

adoptivi

family

After-born
aurasa son

after his death so that she would on adoption stand in the
place of the natural mother ‘If he can do that, it would be
veiy capricious to deny him the power of selecting a single
wife to join with him in his lifetime in adopting a boy, with
the i?ame effect on hei relations with that boy’ (a) It has
been recently held that wheie a man gives a joint power to
his widows to ado{)t and they adopt a bov. the senioi widow
would be his mothei (y) Wheie a man makes an adoption
independently of both his wives, though the Madras High
Couit lefused to consider the question as not likely to
happen (,^), theie can be little doubt that the senior wife
would be the peison whom the law w^oiild name as the
adoptive mother whethei the succession is to ordinary pio-
perly oi an iinpaitible estate Where a man adopts a son
m conjunction with both his wives, the senior wife would m
law' be the adoptive mothei

^ 191. Where a member of a Mitakshaia joint famil}
acloj>ts a son, the lattei becomes fiom the moment of his
adoption a coparcener with his adoptive lather as well as
with the other members of the coparcenary In consequence
of his adoption, he acquiies a light as though by birth in
ancestral or joint famil> jiroperl), can interdict alienations,
demand partition and is also entitled to the benefit of
survivorship Wheie therefoie the adopted son and an after-
born autasa son suivive the fathei, and then the latter dies
without male issue oi widow the former takes the whole

piojieitv bv suivivoiship (ci) The adopted son's ipahts in the
new familv aie preciselv the same as a natural born son''-.
(*\c*ept in a competition between him and an aflei-born aura^o
son (b)

§ 192. Where after an adoption a legitimate son is
boin to the adopter, the adopted son does not, amongst the
twice-boin classes, share equally with the aurasa son but is
entitled to a lesser share on a paitition of joint family
pioperty as well duiing his fatheTs lifetime as after his death
According to Vasishtha, if after an adoption has been made.

(a;) Annapiinu ISachiar v horht's M900) 26 I A, 246, 253, 23
Mad, 1, 9, affg (1895) 18 Mad, 27.

(y) T iruvaigalam v Biit(hn)\a (1929) 52 Mad., 373 Of court-e
where one of two widow* only make* an adoption, *he alone is the
adoptive mothei

(z) Annapiirm i\uc/uar v Forbes (1895) 18 Mad, 277, 287

(zi) ‘Or widow’, after the Hindu Women’s Rights to Propert\
Act, 1937.

(а) 1 Mad HC, 49 note, see also V enkatanarayana Pdlai \
Subbammal (1916) 13 I.A 20, 23, 39 Mad, 107.

(б) Knshnamurthi Ayyar v Knshnamurthi Ayyar (1927) 54 I.A ,
248, 262, 50 Mad. 508, 525

PAR\. 192 .]

VDOPTED son’s SHARE.

261

a legitimate son is bom, the adopted son is entitled to a
fourth part(c). Baudhayana. as explained by the com-
mentator, gives the adopted son one-fourth of the legitimate
son’s share (d). The Mitakshara, quoting Vasishtha.
mentions only a fourth share, and the Dayabhaga a thiid
share (e). According to the Dattaka Mimamsa, the given
son shares a fourth pait. The Dattaka Chandnka however
lays down that the adopted son is to get a fouith of the
aurasa son’s share (/). While the Dattaka Mimamsa makes
no distinction between the Iwice-boin classes and Sudras
on this matter, the Dattaka (Chandnka savs. quotfnsi
a text of Vriddha Gautama that the rule as to one-fourth
share does not apply to Sudras and that amongst them,
the adopted son and the after-born aurasa son are partakers
of equal shaies (g). It is now settled that among the twice-
born classes, the adopted son in competition with the
dftei-boin auiasa son gets an one-third share of the inherit-
anee undei the •Dayabhaga School (/i). In Southern India.
Bonibax and Bengal, in eases governed by the Mitakshara
law. he IS entitled to a fourth of the legitimate son’s share oi
one-fifth of the whole estate (i). In other parts of India
which follow the Dattaka Mimamsa, the adopted son gets
one-fourlli of the whole estate in competition with an aftei-
born aurasa son ( y ) - Among Sudras in Madras, Bengal, and
othei provinces exc’ept in Bombay, it is settled that the adopted

bhare of
adopted son.

Hayabhagd.

Mjtak«‘hard

Sudra^*

ic) Vas, XV, 9

id) Baudh. Parismhtd. VII, V, 16. SBK. XIV p 3d6

(e) Mil., 1, XI. 24, D. Bli . X, 9

if) Dat. Mima, X, 1, Dat Chand., V., 16, 19, 29, Katyayana as
Cited in the Dat Chand allots a third part to the adopted *-00 though
in some copies, the reading is a fourth part.

(g) Dal Chand , V, 29, 32. The Sarasvati Vilasa, Foiilkes, pp
76, 77, para 379 gives the dal I aka a fourth of the share taken hy the
legitimate son.

ih) Birbhadra v. Kalpataru (1905) 1 C.LJ . .388. 404 I The

Bengal Law is stated in a Mitakshara case)

(i) V enkammamidi Balakrishnayya v. Tnambakam (1920) 43 Mad.,
398, where it was held that in a partition between the father, an
adopted son and an after-born aurasa son, the adopted son is (*ntitlcd
to a ninth share, the father and the aurasa son being each entitled to
a four-ninth share; Ginappa v. Ningappa (1893) 17 Bom.. 100.

Tukaram v. Ramachandra (1925) 49 Bom.. 672

(/) 1 W. MacN, 70; 2 W. MacN , 184; F. MacN , 137, and
amongst the Tains. Rukhab v Chunilal (1892) 16 Bom.. 347: Parma-
nand v, Shibcharan Das (1921) 2 Lah., 69.

262

LAW OF ADOPTION

[chap V

Impartible

estate

Rights of
adopted son
on partition
with

collaterals

Removal from

natural

family

son shares equally vMth the after-born aurasa son (k) The
Bombay High Court however refuses to follow the Dattaka
Chandnka and the decision of the Privy Council based on it.
and holds that among Sudras, as among other classes, the
adoptetl son gets only one fifth of the whole estate (/) Whcie
howe\ei it is a question of succession to an impartible estate,
the aftei-born son is preferred to the ado})ted son. the reason
being that the adopted son is a substitute foi the aurasa son.
and that, when tlie latter comes into existence, hc' excludes
the substitute* ( m I

S 193 The lule that an adopted son, on paitition. takes
only a leduccxl shaie in the family piopertv applies onl\ to
cases in which the competition is between an adopted son and
an aftci-born auiasa son of the same father Accoidingl> an
adopted son takes an equal shaie with the natuial born sons of
his adopti\e fathci’s coparc cneis ( /z ) ho also m cases of
revel sionaiy or c ollateral succession, the adopted and the auiasa
sons even of the same lather take ecjual s-haies, foi unless
curtailed bv express tc^xts. the rights of an adopted son aie in
every resficxt similar to those of a natuial-boin son In)

S 19k. B> adoption the boy is completely removed fiom
his natural family as regards all civil rights and obligations
He IS so completely removed that he has not even to obseivc*
pollution on the birth or death of anv member m the
family of his biith (p) He also ceases to peiform
funeral ceremonies for those of his family for whom
hc' would otherwise have offered oblations, and he loses
all rights of inheritance as completely as if he had never

Kk) 1 blra HL, 99, Raja v Subhuraya (1881) 7 Mad, 253,
approved in Perrazii v Subharayadu 11921) 48 lA, 280, 294, 295,
44 Mad, 656, 672 3, overruling Gopalan v Venkataraf'havalu (1917)
40 Mad, 632, Asita Mohun v Nirode Mohun (1916) 20 CWN, 901
Baramanuud v Choicdhn (1889) 14 CLJ, 183, 187, A\yavu v

Ndadatchi (1862) 1 Mad 11 C, 45 (case of Sudras, is overiuled bv
the Pnvv Council on this point).

(/) Tukaram v Ramachandra (1925) 49 Bom, 672

(m) RamasaniJ v Sundarahngasami (1894) 17 Mad., 422, affd

(1899) 26 1 \ , 55, 22 Mad, 515

(n) I\'agindas Bhagivandas v Bachoo Hurkissondas (1915) 43 I A .
56, 40 Bom, 270, overruling Raghiibanand Doss v Sadhu Churn Doss
(1878) 4 Cal, 425, revcr'-ing Bafhoo v Nagindas (1914) 16 Bom LR
263, and approving Tara Mohun Bhiittacharjrc \ Kripa Moyce Debia
9 WR, 423, Dinanath v. Gopal Churn (1881) 8 C LR, 57 and
Raja V Subharaya (1884) 7 Mad, 253

(o) Gangadhar v Hiralal (1916) 43 Cal, 944 (equal shares in
the stridhanani property of their step-mother as her husband’'^
sapindas).

(p) Sarkar, ‘Adoption’, 2nd edn , 388, Dat, Mima.^ VIII, 2-4,

PARA. J94.1

EFFECT OF ADOPTION.

263

been born((/). The adopted son loses his rights in the
copartenarv property (r) and his natural family cannot
inherit from him ( 5 ), nor is he liable for their debts it). Of
course, however, if the adopter was already a relation of the
adoptee, the latter by adoption would simply alter his degree
of relationship, and, as the son of his adopting father, would
become the relative of his natural parents, and in this way
mutual lights of inheritance might still exist. The tule is
merely that he loses the rights which he possessed (jua natiiial
sun. And the tie of blood, with its allendanl disabilities, is
never destroyed. Theiefore, he cannot after adoption
marrv anvone whom he could not have mariied before adop-
tion (u) Nor (.an he adopt out oi his own natural family a
pel son whom, by reason of lelationship. he could not hav^e
adopted, had he remained in it (v) , He is equally debaried
from marrying in his adoptive famih within the forbidden
degrees ( w )

§ 194-A. Whether he is divested ol the ancestial piopcilv
whmh vested solely and absolutely in him pi 101 to his adoption
as the only suiviving membei of the joint family to
vvhifh It pieviously belonged, is a question on which theie is
a difference of opinion The JMadras High Court, lollowing
a Calcutta decision (x) has Indd that he is not so divested

iq) Manu, IX, 142; Dat Mjma., VI, s 6-84, Dat. Chand , 11,

H 18-20, Mil, I, 11, s. 32, V May, IV, 5, s 21, Chandra Kiintvar

V. Chaudri Narpat Singh (1907) 34 TA, 27, 29 All, 184, 190, see
( antra, 1 Gib , 95, to Pondicherry. In parts of the Punjab the

rights of the adopted «ion in his natural family take effect if his

natural falliei dies without leaving legitimate sons Punjab Ciistom-
aiy Law, lit, 83. A son in law, affiliated by the custom of Illatom

which prevails among some classes of Sudras in Madras, does not

lose his rights m his natural family Balarami v Pera (1883) 6 Mad.
267, Ilanumant amnia v. Rami Reddi (1882) 4 Mad., 272. An adoption
made under the very lax customs of the set of Gyawals in Gy a does
not deprive the person adopted of Ins rights, in his natural famih
Luchmun Lai \ Kanhya LaL (1895) 22 I A., 51, 22 Cal, 609

(r) Kiimvar Lallajee v. Ram Dayal AIR 1936 All , 77

(5) 1 W. MacN , 69, Srinivasa v Kiippanay yangar 0863) 1 Mad
H.C., 180; Muthayya v Minakshi (1902) 25 Mad, 394, Raghuraj \
Subadra Kunwar (1928) 55 I A, 139, 3 Luck, 76 (natural brother
cannot succeed to adopted son’s estate in the adoptive family)

(^) Pranviillubh v Deocnstin Bom Sel Rep, 4, kasheepershad v
Bunseedhur 4 N -W.P (S.D.), 343.

(a) Dat. Mima, VI, s 10, Dat. Chand., IV, s. 8, V Mav , IV. 5
s. 30.

iv) Mootia Moodelly v. Uppon Mad. Dec. of 1858, p 117

(w) Dat. Mima., VI, s 25, 38.

(jc) V enkatanarasimha Appa Rao v. Rangayya Appa Rao (1906)
29 Mad., 437, 447 following Behan Lai v. Kailas Chunder (1896)

1 C.W.N., 121, (the former case was reversed by the P.C on anothei

point).

Is adoptee
divested of
his piopertv ''

264

LAW OF \DOPTION

fCHAP. V,

The Bombay High Court has declined to accept this view as
correct, holding that, on adoption, the adopted boy loses all
rights to property he may ha\e acquired in his natural family,
including the right to property which had become exclusiyoly
\ested in him before his adoption (y). It so reads the text
of Manu (cl. as to give full effect to the fundamental idea
imderlving an adoption, viz. that the bov given in adoption
gives up the natural family and everything connected with
it, and takes his place in the adoptive family as if he had
been born in it (a). The lesult would be that on adoption the
properly vested in him would be divested and devolve u[)on
the next heir in the famil} of his birth Distinguishing
Dattatrayas case (y), it was held in a latei ca-^e by the
Bombay High Court that a person does not on adoption lo«i(*
the shaie, which he has already obtained on partition fiom
his natural father and brotheis m the family of his biith (6l
on the ground that the share so obtained cannot be said to be
the estate of hi*^ natural father within the meaning of the text
of Manu The Calcutta High Couit has held, distinguishing
in effect the Bombay case‘s, that under the Dayabhaga law, a
pel son who is given away in adoption i<5 not divested of th^'
inhentance which is alreadv vested in him (c) The question
Is left open bv the ludicial Committee in a leieni ( ase ( r/ 1
On the one hand it must be conceded that if a man at the
time of adoption weie possessed of propel ty. eithci sell-
acquired oi inhented from collaterals, his light to it would
be unaffected by his adoption On the other hand when the
bov adopted is a coparcener in the joint familv. he is divested
of his right in the coparcenary property (el It may be that
a man’s adoption does not divest him of the share which he
has obtained on a partition with his father and brothers ( / 1

(>) Dattatraya Sakharam v Goiind Sambhaji (1916) 40 Horn
429, f(»llowfd in Bai Kesharba v. Shiviangji (1932) 56 Bom, 619. 638,
655 (revel by the Privy Council on another point) See also Mamkbai

V Gokuldas (1925) 49 Bom 520
(2) IX, 142.

{a) (1916) 40 Bom, 429 434-435, cited with approval in Raghuraj

V Subhadra Kuiiuar (1928) 55 1 A , 139, 148, 3 Luck, 76

(b) Mahableshivar iSarayan v Siibramanya (1923) 47 Bom 542

(c) Shyamcharan v Sneharan (1929) 56 Cal, 1135

id) Vijaysingji v Shivsangji (1935) 62 TA, 161. 165 166, 59
Bom., 360, 365

(e) Venkata Nara^imha v Rangayya (1906) 29 Mad, 437, 447,
(1929) 56 Cal, 1135 supra, Kunwar Lallajee v Ram Dayal AIR 1936
All, 77.

(/) Mahabaleshwor v Siibramanya (1923) 47 Bom. .542

PARAS 194-196.]

WHEN ADOPTION DIVESTS

265

There is eertainl\ p:reatei difficulty in saying that when the
mother gives her son in adoption, the adopted son takes awav
fhe property, held by him as surviving coparcener or inherited
from his father, with him into the adoptive family. The
mothei’s rights and the rights of others to maintenance would
be alfected The problem has assumed a slightly different
aspect after the Hindu Women’s Rights to Property Act, 1937
Under that Act, the widow succeeds along with the only son.
whether it the property of a Mitakshara joint family or not
The solution does not depend upon whether what is vested
( an be divested — for an adoption divests his vested right bv
birth in the natural family as well as estates \e«ted in other*^

— nor even on the more difficult question whether the adopted
son IS to be regarded as civilly dead in respect of some
properties and not in respect of otheis. The text of
Manu can only mean that he is not to take his father’s property
into the adoptivg family, whether it is already vested in him
or not. Adoption is tantamount to a renunciation or surren-
der of paternal heritage- The words ‘heritage and got? a in
Manu's text are sufficiently comprehensive and in the
Vlitakshara School where the son’s inherilatuc is always
imobslriutcd. there is even less scope for the distinction
between inheritance already vested in him and property which
he may inherit, if there be no adoption. On the whole, the
view of the Honibav High (]ourl appears to be the bettei
solution

§ 195. The case of an adoption made a widow Adoption
to her deceased husband raises special considerations, by widow
owing to the double fact that the person adopted
has, apart from the recent Act. a better title than the person
111 possession, while, on the other hand, the title of the person
so in possession has been a peifectly valid title up to the date
ol adoption. Questions ol this soil arise in two ways: fust,
with regard to title to an estate; secotMy, with regard to the
validity of acts done between the date of the husband’s death
and the date of adoption

§ 196. As soon as the widow’s power is exercised, the Its effect,
adopted son stands exactly in the same position as if
he had been born to his adoptive father, and his
title relates back to the death of his father to this
extent, that he will divest the estate of any person
in possession of the property to which he would
have had a preferable title, if he* had been in existence at his

266

LAW OF ADOPTION.

[chap. V,

Divests e&late
of widow

Of inolliei

adoptive father’s death (g). One of the most common cases
IS an adoption b) a widow, who is herself heir to hei husband
Prior to the Hindu Women’s Rights to Property Act, 1937. the
result of such an adoption was that her limited estate as widow
at once ceased. The adopted ^on became full heir to the
piopcit). the widow’s lights being i educed to a claim foi
maintenance Now^ under the Act. where the widow takes
along with the male issue of her husband, an adoption will
only divest a moiety of the estate held by her. the other moietv
b Miig letaiiied by her for lu^r life, and if. as w^ould generally
happen, the adopted son is a rninoi. she will continue to hold
It as h\^ guardian in tiust for him i/i) . Where theie arc seveial
widows, holding joinlh. one who has authority fiom hei
husband to adopt would, of coiiise. by exercising it, divest
subject to the inodiln ations intiodiued by the Hindu Women’s
Rights to Property Act, 1937. both hei own estate and that of
her eo-widows. and no co-widow can. b\ refusing hei consent,
pi event the adoption, or destiov its effect upon hei estate
\nd in the Mahiatta count i\. where no authont\' is required
the elder widow may of hei own accord adopt, and theiebv
(lestrov, subject to the modifications aforesaid, the estate of
the youngei widow without obtaining her consent ( ^ Before
the Act of 1937, an adoption made aftei A’s death by the
widow of his piedeceased son diyested the estate of A’s
widow (iM , but such divesting is now subject to the modi-
fications introduced by the Act

§ 197 Wheie on the death of an auiasa oi adopted son
the estate which has descended to him from his fathei yests in
his inothei and hen, and she makes an adoption to her deceased
hu^^band. il is well-settled that the estate so vested in her will
be divested. In Vellanki \ V enkata Rama (y ) a zamindai
died, leaving a widow, an infant son. and daughters On the
death of the son. the widow adopted a son with the consenl
of her husband’s sapindas It was held that he was validlv
adopted and that he w^a'^ entitled to the estate Distinguishin<»

Habii 4noji \ Ratnoji (1897) 21 Bom 319.

{h) Dhurm Das Pandey \ Mt Shama Soondri (1843) 3 MIA
229. Of cour-ie, the adopted son does not take any of the propertv
which IS held hy the widow as her stridhana, W & B 4th edn , 103S

(i) Mojidahini Dasi v Adinath (1891) 18 Cal, 69, Rakhmabai v
Radhabai (1868) 3 Bom 11 C (ACJ), 181, Bhimava v Sangawa

(1898) 22 Bom, 206, Amava \ Mahadgauda (1898) 22 Bom, 416,
Narayanasami \ Mangammal (1905) 28 Mad, 315

(ji) Ramkishen v Mt Sn Mutee 3 S.D , 367. 489, V. Darp., II.
Bk III, 619

(/) (1876) 4 I.A, 1, 1 Mad. 174.

PARAS. 197-198.]

WHEN ADOPTION DIVESTS.

267

Bhoohun Moyees case (A;), their Lordships observed: “That
authority does not govern the present case, in which the
adoption is made in derogation of the adoptive mother’s
estate; and indeed expressly recognises the distinction”.
Though the main question in that case was as to the validity
of the adoption, the case has always been recognised as an
authority for the proposition that an adoption divests the
mother's estate also. It will be observed that if the effect of
the adoption is to intioduce only a brother to the last male-
holder, the estate ol the mother, who is a preferable heir
would not he divested The title of the adopted son however
relates ba( k to the death of the adoptive father and the
adoption sul)‘-titutes anothei son in place of the deceased son
He can be regarded as a coparcener w'lth his brother only
under the Mitakshara law, but not under the Dayabhaga law,
where also the mother’s estate is divested by the adoption. The
giound of the divesting must therefore be, either that the
mother elects to*hold the pioperty as her husband’s propeitv
when she exeicises her power of adoption, or that the title
of the adopted son i elating back to his father’s death is the
necessary legal result of the power to substitute another son
lor one deceased (/) The Madras High Court has in one case
held that a widow who had succeeded as heir, to an adopted
son, and made a subsequent adoption after his death, was
divested of the self-acquired property of the son first adopted
by hci (m) . This decision does not appear to be sound in
principle: the adopted son can only succeed to what is oi
could have been the propcity of the adoptive father, and the
mother’s interest in her husband's estate only could be
divested.

§ 198 All adoption made to a coparcener in an undivided
family places the adopted son in the same position as an
aiirasa son so that he divests the estate ot any one who in his
absence lakes his fathei's interest. For instance, where m

ik) (1865) 10 MI.A, 279.

(/) See Vellanh v. Venkata Rama (1876 ) 4 I A., 1, 1 Mad, 174.
Jamnabai v. Raychand (1883) 7 Bom, 225, Ravji Vinayakrav v
Lakshmibai (1887) 11 Bom, 381, 397; Verabhai v. Bai Hiraba (1903)
30 I.A , 234, 27 Bom, 492, Mallappa v. Hanmappa (1920) 44 Bom,
297, Jatindra v Amrita (1900) 5 CWN, 20, in Ramasami v Veniata-
ramiyan (1879) 6 I A, 196, 208, 2 Mad, 91, 101, the Privy Council
observed. “The first adopted son became his fathers heir, on the
death of that son after that of his father, the widow became the
heir, not of her late husband but of the adopted son. Whether by the
act of adopting another son she in point of law divested herself of
that estate in favour of the second son may be a question of some
nicety, on which their Lordships give no opinion.”

(m) Suryanarayana v. Ramadoss (1918) 41 Mad., 604,

Of infeiior
heir

268

L4W OF \DOPTIO^

[chap. V.

Bombay

decision.

the Madras Piovince, an undivided brothei succeeded to
an impartible zemindary in Ganjam. on the decease of his
brothei, the la<^t holder, it was held that his estate wa*^
divested by an adoption made bv the widow of the latter after
Ins death and under his authoritv (n). And so it would be
in le^ard to partible properly held b\ two brothers On the
death of one brother, his interest would now. undei the Hindu
Women’s Rights to Property Aft, 1937, vest in his widow, and
an adoption made by hei to hei husband would divest a moietv
ol her interest and let him in as a copai eerier with others, just
as if he weie a posthumous son (o) So too where
an adoption is made not to the last male holder, but to his
father b) the latter's widovx. it will divest the estate which
vested on the last male holder's death in a collateral or
other hen who would not have taken if the adopted son
had then been in existence In 4rnarenf1ra Sanatan {p\
and Vijarsanp^ji \ Shivsangji (q) the estate descended from
the fathei to the ^on. who was the last suivfving member ol
the copai cenai) The estate vested on the son’s death in tin
one case, and on the son's adoption into a different family ui
the other, after the extinction of the copai cenary, strictly by
inhei itaiice, in a separated collateral If the son adopted
had been in existence at the mateiial time, he would
have taken hv survivoiship in p refer ence to the col*

lateral It was held that the adoption divested the

estate vested in the latter It is quite immaterial
whether the vesting in the collateral was by inheritance or bv
survivorship or bv leveiter In all cases a valid adoption
divests the estate of anv person who would take only after
an aurasa or adopted son The clear result of the two recent
decisions of the Pi ivy Council is to make the devolution of
property ‘an accessoiv’ to a valid adoption.

Ji 199 The Bombay High Couil however in a recent
Full Bench decision (/) would adhere to the older view but
111 a dilTcrent wav The Court held that an adoption made
by a widow of a predeceased coparcener after the termination

in) Raphunadha v Brozo Kishorc (1876) 3 lA, 154, 1 Mad. 69

(o) Apart from tlic Act, on the death of one of two undivided

brothers the whole of the property vested by survivorship in the other
and an adoption made to the deceased brother by his widow put an
end to the survivorship Surendra v Sailaja (1891) 18 Cal, 385
Vithoba v Bapu (1890) 15 Bom. 110, Bachoo v Mankorebai (1906)
34 I A, 107, 31 Bom, 373

(p) (1933) 60 I A, 212, 12 Pat, 642

(q) (1935) 62 T A 161 59 Bom 360

(r) Bala Sakhnram v JMhu Sabhaji [1937] Bom., 508 (F.B.), see
Jngdish V Punamrhand (1938) N L 1 , 176,

PARAS. 199 - 200 .]

WHEN ADOPTION DIVESTS

269

of the coparcenary is valid, but it would not divest the joint
family property vested by inheritance on the death of the last
surviving coparcenei in his heir. The Full Bench held that
the case of Chandra v. Gojarabai (s) and other cases following
It, were overruled by the Judicial Committee on the main
question of the valid itv of the adoption, but that they are still
good authorities for the proposition that there would be no
divesting. The doctiine that an adoption is valid in such
circumstances, but would be ineffectual to divest the estate
may be attractive, but does not appear to be correct:
foi. It is opposed to the actual decisions in Amaiendta^s case
and Vijaysan^ji^s case where on the death of the last surviving
( opan oner, the estate vested bv inheritance in a collateral
and It was held that it was divested bv an adojition validlv
made not to the last holder but to the pievious holder of the
property. Chandra s case (5) and the cases following it (/»
cannot therefore be legarded as good law The principle
therefore appears to be that either the lieu 01 copauener who
takes in the absence of the adopted son takes onlv a defeasilile
estate, that “the male line is not regarded as extinct until the
continuation of the line bv adoption is impossible and that the
adopted son succeeds as if he were the aurasa son” and “ousts
eveiv one whose right to enter was onlv temporary, opeiating
iiicrelv to prevent the ownership fiom being in abeyance
jicnding aiiv such succession as the adoption brings
about” {u}. This vexed question of divesting will not in
lutuie be of the same piactical importance as it has been till
now; foi nndei the Hindu Womeirs Rights to Property Act.
19 ‘^ 7 . the widow of a piedec eased coparcener would take hci
husliand's inteiest and the adopted son would be entitled to
his rights as coparcenei in the family propeity, notwithstand-
ing the vesting of the last male coparcener’s interest in his
widow'

§ 200 It will be noticed that the common featuie that i^^
present in all these cases of divesting is that it is the estate 01
interest of the father which is vested in an heir inferior to the

( 5 ) (1890) 14 Bom., 463. This case was rightly understood by
Sir D. F. Mulla in Bhimabai v. Gurunathgauda (1932) 60 1 A., 25, 57
Bom., 157, as holding that the adoption was invalid. If it were other-
wise, divesting would have been allowed.

(t) Adivi V. Nidarmarty (1909) 33 Mad., 228, Sri Dharnidhar v.
Chinto (1895) 20 Bom., 250, Amava v. Muhadgauda (1898) 22 Bom.,
416; Payapa v. Appanna (1898) 23 Bom., 327; Shivbasappa v. Nilava
(1922) 47 Bom., 110; Hirabharthi v. Bai Javor (1920) 30 Bom. L.R.,
1555; Annamah v Mabbu Bah Reddy (1875) 8 Mad. H.C., 108.

{u) Madana Mohana v. Purushothama (1915) 38 Mad., 1105,
nil, affirmed in (1918) 45 I.A 156, 160, 41 Mad, 855, Pratapsingh
V. Agarsingji (1919) 46 LA., 97, 43 Bom., 778.

270

L\W OF ADOPTION.

jcHAP. V,

hon, subject to the emeigence of a son In no other case can
the doctiine of the defeasible estate be applied. In Bhoohun
Moyee \ Ram hi shore \ v) Bhovvanee’s widow. Bhoobun
Movce was Bhowanee’s heir in preference to Ram Kishore
He could not therefore divest her e\en if his adoption had
been valid But the adoption itself was invalid owing lo the
existence of Bhowanee’s widow If the adoption was not
invalid ai d the case itself had been governed bv the Mitak-
shara law, it would have been dilTeient. lor. if he had been
in existence he would have taken by suivivorship, divesting
the VMdow In a Mitakshaia case where a coparcener dies,
whether he is the last member ol the coparcenary
or not an adoption made to him mtioduces a son who
will take by survivoiship This is implicit in the powei
of a widow to adopt to hei deceased husband m
the copaicenary and to sa\ that the existence of a
son IS a bar to an adoption is no answer For when once the
adoption is made, his rights, unless cm tailed by express texts,
are exactlv the same as those of a natural born son He
would theiefore he entitled to succeed by survivorship on the
death of his hi other to the father's propel tv even in the
presence of his brother’s widow (v^) It would be an error to
apply the observation in Bhoobun Moyee^s case as applicable
to a Milakshara faniilv (w ) As Sir Geoige Lowndes explains
it in Arnarendra's case (v). “The parties being governed bv
the Davnlihaga Law, Bhoobun j\lo>ee would have succeeded to
Bhovvanee's jnopeilv in piefercnce lo Ram Ki^hore even if
he had been a naluial born son of Goui Kishore”. Bhoobun
Moyee\s case is theiefoie no authority on the question that
an adoption made to a previous holder, if valid in other
lespects, will not divest the estate of the last holder, if such
hen were infeiior to the son adopted Where the property
of A descends to his son, B, and on his death leaving no
widow but a daughter or daughter's son, A’s widow adopts
C. under the Mitakshaia law, C would divest the ancestral

{v) (1865) 10 MIA. 279

(v^) But this j's siihiccl to the modifications introduced by the
Hindu Women’s Rights to Property Act, 1937, for, the brother’s widow
would take his eoparctnaiy interest

(iv) But in Siibramanian v Soma^iindaram (1936) 59 Mad., 1064,
however, there is an oliservation to the effect that even in a case under
the Mitakshaia law, if an adoption by the mother on the death of a
son leaving a widow valid b\ custom, it would not divest the estate
taken by the son’s widow The dictum was purely obiter, for the
decision itself affirmed the deciee in favour of the adopted son for his
share as against a third party, leaving the question as between him
and the widow of his brother open

ix) (1933) 60 I A., 242, 10 Pat., 642

P\RA. 200. J

WHEN ADOPTION DIVESTS.

estate vested in the daughter oi daughter’s son for he would
have been a coparcener. He would not however divest the
separate property of B, for the daughter or daughter’s son
would be the preferable heir (y). Likewise in all cases
under the Dayabhaga law whether the property vested in
the brother was ancestral or self-acquired. In a Bengal
case, the facts weie as follows: — P and B, named in the
annexed table, were undivided brotheis, who held their
pioperly in quasi-severaltv. P. by his will, bequeathed
his share to his widow B D for life, and after her to
the sons of his daughter, if any, subject to trusts,

legacies and annuities. The daughter died without
issue during the widow’s life, and at her death the

A die& 1825

P dies 1851 B dies 1845

==BD dies 1864 |

I K dies 1855

daughter = Bamasoondery

dies childless after her who in 1876 adopts

father and before her mother Kally Prosonno, the plaintiff

widow made a will, bequeathing the property to the defend-
ant. as executor, for religious purposes K died in 1855,
leaving to his widow authoiity to adopt. If she had exercised
that authority prioi to the death of B D, there can be no doubt
that the son adopted to K would have been the heir of his
giand-unclc P, and would have been entitled to set aside the
wnll of B D. and to claim the propeity of P, so far as he
had not disposed of it by his will. But the powder was not
exercised till after the death of B 1). The (lourt held that
the adopted son could not claim the estate iz) In Blmba-
neswari v. Nilkomul (a) which was a case under the Daya-
bhaga law, of three brothers deceased, the one who died first
left one son. The second dying left a widow' who took her
estate for life in her husband’s property and the third left a
widow to whom he gave by will a power to adopt. On the
death of the widow of the second brother, the son of the first
inherited his uncle’s share in the family property and by
fraudulent acts caused delay in the exercise of the power of

(y) In Chanbasappa v. Madiwalappa [1937] Bom., 642, it was held
that an adoption made by a widow after the death of her adopted son
leaving two daughters as his heirs was valid.

(z) Kally Prosonno v Gocool Chunder (1877) 2 Cal , 295.

{a) (1886) 12 I.A, 137, 12 Cal., 18 affg. (1881) 7 Cal., 178.
See also Faizuddin v. Tincowri Saha (1895) 22 Cal., 565, Anandibai
v. Kashibai (1904) 28 Bom., 461.

272

LAW OF ADOPTION

[chap V,

adoption by the widow of the third. Afterwards the latter
adopted a boy who had not been born during the lifetime of
the widoH of the second brother It was held that the adopted
son was not entitled to share along with his nephew the estate
which had belonged to the uncle The decision of the Priv>
Council rested Iargei\ upon the fact that the boy adopted
not ha\iiig been born at the time the inheritance opened, never
could, in the couise of nature, have become the heir of the
uncle's estate iN'evertheless it is an authority foi the proposi-
tion that an adoption aftei the death of a (ollateial does not

entitle the adopted son to come in as an heir to property

which was not his father's propertv

^ 201 Apait iiom the conseijuences of the Hindu
Women’s Rights to Piopertv Act, 1937 these and

( onclii‘'K)n^ othei authorities lead to the following conclusions
fust, where an adoption is made to llie last iiiah' holder, the
adopted son will duest the estate of any person, whose title
would have been inferior to his. if he had been adopted piior
to the death, secondly, wheie the adoption is not made to the
last male holder, but is made bv the widow of the father ol

the last male holder, it will, if in other respei ts valid, not

onlv divest hei estate as mother but the estate of
anvone who if the adopted son had been in

eMsteiue before the death would not have taken
the estal(‘ ol the last mal(‘ holdei, tJuuIly. where

an adoption is made b} the widow^ of a deceased coparcener.

It will, if in other respects valid, divest the interest or estate

of the father which became v(‘sted in the surviving coparcener

as also the estate held b> the last surviving coparcener which
vested in his heir; fourthly^ in no other circumstances will
an adoption be made to one peison divest the estate of anv*
one who has taken that estate as heir of another person. The
first and the third propositions are, with leleience to suc-
cessions governed by the Hindu Women’s Rights to Propertv
Act, 1937, subject to two modifications. (1) An adopted son
will divest the estate vested in his adoptive mother only to

the extent of a moiety. (2) In the case of ordinary partible

property, as the widow of a pre-deceased coparcener will
inheiit her husband’s inteiest and inteicepts its passing b)
survivorship to the surviving coparceners, the son adopted
by her will only divest her interest and that to the extent of
a moiety. Where a widow who has succeeded to her son’s
estate as mother adopts a son, the adopted son will as before
divest the estate taken by her as mother.

(fll) See post Ch. XIV.

PARAS. 202-203. J

ANTE-ADOPTION AGREEMENTS.

273

§ 202. Where a widow’s power of adoption is at an end,
she cannot make a valid adoption with the consent of the
person in whom her husband’s estate is vested. It is now
established that the power of adoption is independent of any
question of vesting and divesting. The decisions of the
Bombay High Court expressing the contraiy view cannot
be regarded as good law (fc). Even in the Bombay High
Court there has been difference of opinion (c). The High
Court of Madras has expressly dissented from that view (d).
It is difficult to conceive how when the law puts an end to
the power of adoption, the consent of the person in whom the
estate is vested can revive the power. To make an adoption
valid ab initio^ the widow must have had a sufficient author-
ity, which was capable of being acted on at the time it was
exercised.

§ 203. In Bengal undei the Dayabhaga law, where a
father has the ^^bsolute power of disposing of his property,
he may couple with his authority to the widow to adopt,
a direction that the estate of the widow shall not be interfered
with or divested during her life, or indeed any other con-
dition derogating from the interest which would otherwise
be taken by the adopted son (e). In provinces governed
by the Mitakshara law, where a son obtains by birth a
vested interest in his father’s ancestral property, a person
who has once made a complete and unconditional adoption
could not derogate from its operation either by deed during
his lifetime or by will, unless the property is imparti-
ble (/j. But where a man made a disposition of part of his

{b) Riipchand v. Rakhmabai (1871) 8 Bom. H.C.A.C., 114, 122;
Babu Anaji v. Ratnaji (1897) 21 Bom., 319, Gopal v. Vishnu (1899)
23 Bom., 250; Payapa v. Appanna (1899) 23 Bom., 327, Bhimappa v.
Basava (1905) 29 Bom., 400; Siddappa v. Ningangavda (1914) 38
Bom., 724.

(c) Dharnidhar v. Chinto (1896) 20 Bom., 250, 258 ; Vasudeo Vishnu
V. Raniachendra Vinayak (1898) 22 Bom, 551, 555 (F.B.) ;
Anandibai v. kashibai (1904) 28 Bom., 461, 465; Vaman v. Venkaji
(1921) 45 Bom., 829, see too Knshnarav v. Shankerrav (1893) 17
Bum., 164.

id) Annamah v. Mabbu Bah Reddi (1875) 8 Mad. H.C., 108,
Adivi V. I\lidaniarti (1910) 33 Mad., 228.

(e) Radhamonee v. Jadunarain S.D. of 1855, 139; Prosunnomoyee
V. Ramsoonder S.D. of 1859, 162. Bepin Behan v. Brojonath Afookho-
padya (1882) 8 Cal., 357, Bhupendra Krishna Chose v. Amarendra
Nath Dey (1916) 43 LA., 12, 43 Cal., 432; Basant Kumar v. Ram
Shankar (1932) 59 Cal., 859, 877.

(/) Sartaj Kuan v. Deorajkuari (1888) 15 I.A., 51, 10 All., 272;
Venkata Surya Mahipati v. The Court of Wards (1899) 26 I.A., 83,
22 Mad, 383, Pratap Chandra v. Jagdish Chandra (1927) 54 I.A..
189, 54 Cal., 955; Impartible estates are inalienable in Madras under
the Madras Impartible Estates Act, 1904, beyond the holder’s life
except for necessary purposes.

20

Widow’s
power if at
an end can-
not revive.

Restrictions
on adopted
son’s estate,
how far valid.

274

L\W OF ADOPTION.

[chap. V,

property which was valid when made, and as part of the same
transaction took a boy in adoption, the father of the adopted
boy being aware of the provisions of the will, and assenting
to them, and knowing that the testator would not have made
the adoption without such assent, it was held that the will was
valid against the adopted son ig). It has been held
in Bombay that if the parent of the boy, when
giving him in adoption, expressly agrees wuth the widow
that she shall remain in possession of the property during her
lifetime, and she only accepts the boy on tliose terms, the
agreement wull bind him. as being made bv lus natural
guardian, and within the poweis given to such guardian by
law (i) But if the stipulations of the contemporaneous
agreement are unreasonable, for instance, if they invest the
widow with powers to be exercised not for her own benefit
but for her daughtei or biothei, they are invalid (/). In one
case, Lord Macnaghten said that it was difficult ‘‘to understand
how an agreement by a natural father could p^rejudice or affect
the rights of his son, which could only aiise when his parental
control and authority determined and that if c ondilions were
attached to the adoption, the analogy, such as it is, presented
by the doctrines of Courts of Equity in this countrv relating
to the execution of powders of appointment would rather
suggest that, even in that case, the adoption would have been
valid and the c’onditions void” (/O. A Full Bench of the
Madras High Court held that an ante-adoption agreement

ig) Lahshmi \ Subramanya (1889) 12 Mad, 490, Narayanasami
V. Hamasami (1891) 14 Mac! , 172, Ganapathi Aiyan v Savithri (1898)
21 Mad, 10, Vinayek ISaravan v Govindarav Chintaman (1869) 6
Born. H C AC., 221, Basaia \ Lingangauda (1895) 19 Born, 428.
Kali Das v Bijai Shankar (1891) Id All d91, Baliiaut Singh v Joti
Prasad (1918) 40 All, 692, Durgi v Kanhaiyalal (1927) 49 All, 579
But see Balkrishna Motiram v Shri I ttar Narayan Dev (1919) 4d
Bom., 542, where rt was held that a reservation in favour of a religious
chanty, though not unreasonable in amount, was not warranted b>
Hindu law In Vinayak Narayan v Govindrav (1869) 6 Bom IJ C
(A.C.J.), 224, 230, Couch C J cites jutwah of the pundits in 6 M I A
at p. 320 that a will of the whole properly would be revoked by a
subsequent adoption This appears to he wrong A bf*qiiest will be
invalid, if of ancestral property, but valid if of self-acquired property
(r) Chitko Kaghunath \ Janaki (1874) 11 Bom. H C., 199,

followed in Ravji I inayakrav v Laksmibai (1887) 11 Bom., 381,

p. 400. See as to the effect of such an arrangement, Antaji v Dattaji
(1895) 19 Bom, 36 If the adoption is made during the lifetime of
the adoptive father, any instrument purpoiiing to confer a life estate
or other interest m the property requires registration, Pirsab Valad
Kasimsab v. Gurappa Basappa (1914) 38 Bom, 227.

' (/) Vyasacharya v Venkubai (1913) 37 Bom, 251, F.B., Pemraj
Mulchand v. Rajbai (1937) 39 Bom LR, 1069

(A:) Bhasba Rabidat Singh \ Inder Kunwar (1889) 16 LA., 53,
p. 59, 16 Cal., 556, 564.

PARAS. 203-204.1

ANTE-AbOPTlON AOUEEMENTS.

2?5

when it formed part of the negotiations pieceding the adoption,
and was embodied in the deed of adoption, came within the
powers of the father acting as guardian of his son in
giving him in adoption, and would bind the son if “the
agreement in regard to the property was in itself a fair and
reasonable one, and one which, taken as pait of the contract
for the adoption, was for tiie minor’s benefit, as being a
condition on which alone the adoption would be made” (/).

§ 204. Quite recently in Krishiiamurthi v. Krishna^ Krishna-
murthi {m) the Judicial Committee considered the whole murthis
question. In that case, a testator by his will gave part of
his property to his intended adopted son, part to his wife,
part to kindred and part to charity. Before the adoption
took place the natural father executed a deed by which he
consented to the provisions of the will and gave his son in
adoption subject to them. It was held that the
arrangement w;iis not binding upon the adopted son Pro-
ceeding to examine the matter on piinciple. Lord Dunedin
observed: “When a disposition is made inlet vivos by one
who has full power ov(3r piopert>, uiidei whuh a portion of
that property is carried awa\, it is clear that no rights of a
son who is subsequently adojited can affect that portion which
is disposed of. The same is true when the disposition is bv
will and the adoption is siibsequeiilly made by a widow who
has been given powei to adopt. For the will speaks as at
the death of the testator, and the pioperty is earned away
before the adoption takes place. It is also obvious that the
consent or non-consent of the natural father cannot in such
cases affect the question. But it is quite different when the
adoption is antecedent to the date at which the disposition is
meant to take effect. The rights which flow from adoption
are immediate, and the disposition, if given effect to, is incon-
sistent with these lights and cannot of itself vi propria affect
them. Theie are two propositions so w'cll settled that no
authority need be cited. Thev aie. fii^^t. that the natural
father loses all powei ovei the son from the moment when
he is adopted, and, second, that the adopted son has m his
new family precisely the same rights as a natural son, save
only vvhen the question is one that raises a competition between

(/) Visalakshi v. Swaramien (1904) 27 Mad, 577. FB, 585, rr-
fernng to earlier cases, Panrhanon Majumdar v. Buioy Krishna (1918)

27 C.L.J , 274.

(m) (1927) 54 T.A , 218, 50 Mad, .508, .525, followed in Seethiah
V. Mutyalu A.T R. 1931 Mad., 106; Sudarsana Rao v. Seetharamamma
(1933) M.W.N., 1148, Banarsi Das v. Sumat Prasad A.I.R. 1936 All,,

641; Hcmendra v Jnanendra (1936) 63 Cal., 155; Shankar v.
Channappa (1938) 40 Bom. L.R. 443, Kartialahai v. Pandurang (1938)

40 Bora. L.R., 428.

276

LAW OK ADOPTION

[chap. V,

Agieemeni
by one siu
juris

the natural and the adopted son*’. Eventually their Loidships
held (1) that the only ground on which an ante-adoption
agreement with the natural fathei can besonctioned is custom.
(2) that an agreement giving a life interest in the whole
properly to the widow the adopted son taking it on her death
would be valid, and (3) that ‘"as soon, however, as the arrange-
ments go beyond that, i.e., either give the widow property
absolutely or give the property to strangers, they think no
custom as to this has been proved to exist and that such
arrangements are against the ladical view of the Hindu law’

Subsequent to this decision it has been held in Madras that
an arrangement by a widow with the father of the bo) to
settle upon her a poition of hei husband’s landed estate for her
absolute enjoyment is valid (/i I This decision appaientU
goes back to the older view that what the Court thinks fan
and reasonable is valid and binding on the adopted son and
IS not consistent with the decision in Ki ishnamurlhi s case.

§ 205 An agi cement enteied into at the time of his adop-
tion by one who is sui juris with his adoptive fathei or with
the widow who adopts him affecting his interests in the pro-
pel ty that he will acquire on adoption is valid An agreement
that the widow shall take half the property for the payment
of her debts is valid and binding on the son adopted io)
After an adoption, when of full age. an adopted son (an
also latify any anangcnient between his natuial father and
the widow making the adoption (p). He may aftei
adoption renounce all right'-, in his adopted family, but this
will not destroy his status a^ the adopted son. nor restore him

in) Raja v. ISagainnial (1929) 52 Matl., 128; Ramiah v. Maha^
lakshrnamma (1932) 35 MLW, 30, will probably stand on a different
fooling, as only movables and outstandings were given The Judicial
Committee appear to ha\e laid down that only immovable property
should not be given absolutely

(o) Mt Tara Munee v Dev i\arayati 3 .S D , 387 (516), 2 MacN.,
183, Mt. Bhugobutty v. Chowdhry Bholanath 15 W.R., 63; Kashibai
V. Tatya (1916) 40 Bom, 668, Pandurang v Narmadabai (1932) 56
Bom., 395, Vithal Laxman v. Yamiitai (1934) 58 Bom, 234, Mittar
Sain v. Datta Ram A.I.R. 1926 All., 7, Mittar Sain v. Datta Ram
A.I.R 1926 All, 194, Krishnayya Rao v Maharaja of Pithapiir (1935)
69 M L.J., 388, P.C

ip) Ramasami v V encataramaiyan (1879) 6 I.A., 196, 208, 2 Mad,
91, 101, Kalidas v. Bijai Shankar (1891) 13 All, 391, Sahramania >
V elayudam (1932) 55 Mad, 408; Amur Chandra v. Saradamayee
(1930) 57 Cal., 39, 42, see also Pandurang v Narmadabai (1932)
56 Bom., 395, 399 400.

PARAS 205-206.]

WHKN RIGHTS COMMENCE.

277

to the position he has abandoned in his natural family. Upon
his renunciation the next heir will succeed {q).

§ 206. The second question, which arises in the case of
an adoption by a widow after her husband’s death, is as to the
date at which the rights of the adopted son arise. An adop-
tion, so far as the continuity of the line is concerned, has a
retrospective effect and there is no hiatus in it (r). The rights
of the boy as adopted son arise only from the date of the
adoption in the sense that he is bound by such acts of the
widow as would bind the heirs of the husband after her (s)
An adopted son is not necessarily bound by all the dealings
with the estate between the death of his adoptive father and
his own adoption it). The validity of those acts would have
to be judged with reference to their own character, and the
nature of the estate held by the person whom he supersedes.
Where that person, as frequently happens, is a female, either
a widow, a datfighter, or a mother, her estate is limited b\
the usual restrictions which fetter an estate which descends
by inheritance from a man to a woman. These restrictions
exist quite independently of the adoption. The only effect
of the adoption is that the person who can question them
springs into existence at once, whereas, in the absence of an
adoption, he would not be ascertained till the death of the
woman. If she has created any incumbrances, or made any
alienations which go beyond her legal powers, the son can
set them aside at once. If they are within her powers, he is
as much bound by them as any other reversioner would be (w) .
And he is also bound, even though they were not fully within

Son’s rights
date from
adoption.

How far he
may dispute
previous arts
of wido^

iq) Ruvee Bhudr. v. Roopshunker (1824) 2 Bor., 656, 662, 665,
713; Lakshmappa v. Ramava (1875) 12 Bom. H.C.A.C., 364, 388,
Mahadu Ganu v. Bayaji Sidii (1895) 19 Bom., 239; Lunkurn v. Birji
(1930) 57 Cal, 1322 Apparently under Burmese Law an adopted
son could forfeit his status by unhlial conduct under certain circum-
stances* Ma Chit Su V Kyaw Maung A.I.R 1933 Rang, 128.

(r) Pratapsing v Agarsingji (1919) 46 I A , 97, 107, 43 Bom, 778

(s) Bamundoss v. Mt Tarinee (1858) 7 M.I.A., 169, Moro

Narayan v. Balaji (1895) 19 Bom., 809, Vaidvanatha v Savithri (1918)
41 Mad., 75, FB., at p. 91

(0 (1918) 41 Mad., 75, F.B., supra, overruling Sreeromuiu \
Knshnamma (1903) 26 Mad., 143.

(u) Kishenmunnee v. Oodwunt 3 S D., 220 (304), Ramkishen \
Mt Stnmutee 3 S.D., 367 (489), explained in 7 M.I.A., 178, Doorga
Soonduree v. Goureepersad S D. of 1856, 170, Sreenath Roy v Rutturi’
mulla S.D. of 1859, 421. Mamkmulla v. Parbuttee ih,, 515, Lakshmana
Ran V. Lakshmi Ammal 4 Mad., 160, per curiam, 8 M.I.A., p. 443,
Lakshman Bhau v Radhahai (1887) 11 Bom., 609; Antaji v. Dattaji
(1895) 19 Bom, 36, Moro Narayen v. Balaji Raghunath ib,, 809,
Ramakrishna v. Tripurabai (1909) 33 Bom., 88, (1918) 41 Mad., 75,
supra.

278

h\W OF ADOPTION

[chap. V,

Acts of
previous
male holder

her powers, provided she obtained the consent of the persons
who, at the time of the alienation, were the next heirs, and
tompetent to j:ive validity to the transaction (v) Where a
Hindu widow alienated her husband’s estate and adopted a
son who died a minor and thereupon she adopted a second
son, it was held that the second adopted son was entitled to
question the alienation and that the previous adoption did not
affect his rights in) An adopted son however is not in the
same position as a leversioner, his cause ot action to recover
property alienated oi to set aside an alienation arises on
the date of his adoption (.v) It may now lie considered as
settled law, first, that if a widow exi eeds the poweis conferred
upon her by law, her aits in so fai as thev are iii excess of
those poweis can be set aside by a subsequently adopted son
as from the date of his adoption secondly, that as the
adoption immediately divests the widow’s estate, it equally
divests the estate of any one claiming undei a title deiived
from her.

^ 207 Where an adoption defeats the estate of a person
who IS lawfully in possession, such holder if a male has the
ordinary poweis of alienation of a Hindu proprietor No doubt
he is liable to lie superseded, but, on the other hand, he nevei
may be superseded It would lie intolerable that he should be
prevented from dealing wuth his own, on account of a contin-
gency which may never happen When the contingency has
happened, it would be most inequitable that the purchaser
should be deprived of rights which he obtained from one who,
at the time, was perfectly competent to giant them (y).
Accordingly, where the brollier of the last holder of a Zemin-
dary was placed in possc'ssion in 1869, and subsequently
ousted by an adoption to the late Zemindar, the Privy Council

iv) Raihnsto v Kishoree 3 WR, 14 S("e dbo Bajrnngi Singh v
Manokarnika Hahsh Singh (1908) 30 All, 1 (P (" ) Compare

Yeshtmnta v Anfa (1934) 58 Bom, 521 (where the widow and the
next reversioner at the time joined in the alienation of the whole
estate) , Pilii v, Babaji (1910) 34 Bom , 165 and Sakharam v Thana
(1927) 51 Bom 1019 (invalid surrender — subsequent adoption)

(w) Hanmant v Krishna (1925) 19 Bom., 604, Gobindonath v
Ramkanay 24 WR, 183, and Kallv Prosonno v. Gocool Chunder
(1877) 2 Cal, 295, 307, cannot be regarded as good law.

(x) Hanamgowda v Irgowda (1924) 48 Bom, 654, Banomali v
Jagat Chandra (1905) 32 lA, 80, 32 Cal 669 See Dalel Kunwar v
Ambika Par tap (1903) 25 All , 266, as to the right of a Hindu widow
in bona fide possession of her husband s estate and without negligence,
ousted by a son adopted bv her husband and her liability to account
for mesne prohts

(y) The above passage was tiiMl with approval in V eeranna y
Say amnia (1929) 52 Mad 398, 402

PARA. 207.]

WHEN RIGHTS COMMENCE.

279

held that he could not he made accountable for mesne profits
from the former date. Their Lordships said: “At that time
Raghunada was, in default of a son of Adikonda, natural or
adopted, unquestionably entitled to the Zemindary. The
adoption took place on the 20th November, 1870, and the
plaint states that the cause of action then accrued to the
plaintiff. The plaint itself was filed on the 15th December,
1870, and there is no proof of a previous demand of posses-
sion. Their Lordships are of opinion that the account of
mesne profits should run only from the commencement of
the suit” ( 2 ).

In Veetanna Sayamrna (a), the last surviving member of
a joint family was held entitled to alienate all the family
properties absolutely, even by gift as against a son adopted
to his pie-deceased son. It was only an ordinary case of
an alienation m|ide by a giandfather when the grandson was
not in existence. Il is well-settled that an alienation is bind-
ing upon a son or grandson who was not in existence at the
date of the alienation, if there were no other son or grandson
in existence along with the alienor (fe). The discussion as
to whether a perstm who holds a defeasible estate can give his
donee a better title than he himself possesses was unnecessary in
that case. The question whethei any distinction between an
alienee for value and a volunteer exists, may have to be consi-
dered when it arises In th(‘ mattei of impeaching an alienation,
an adopted son is in no better position than an aurasa son.
In Sri Raja Venkata Siirya v. Court of Wards (c), the Judicial
Committee held that the holder of an impartible zemindary
who had adopted a son could devise that estate, which was
found to be alienable, by will against his adopted son. A
Hindu adopting a son does not thereby deprive himself of
any power that he may have to dispose of his property by will.
There is no implied contract on the part of the adopter in

( 2 ) Raghunadha v. Rrozo Kishore (1876) 3 I.A., 154, 193, 1
Mad., 69.

(а) (1929) 52 Mad., 398.

(б) Lai Bahadur v. Ambika Prasad (1925) 52 I.A., 443, 47 All,
795, See also Kalyanasundaram v. Karuppa (1927) 54 I.A., 89, 50
Mad., 193 (gift before adoption) ; Krishnamurthis case (1927) 54
I.A., 248, 262, 50 Mad., 508, 518.

ic) (1899) 26 I.A.. 83. 22 Mad., 383.

^80

Dwyamushyo'

yana

Prevalent

foim.

LAW OF ADOPTION [ CHAP.

ronsideration of the gift of the son bv the natural father not
to make a will fc?) .

§ 208 An exception to the rule that adoption severs a
son from his natural family exists in the case of what is called
a dwyarnushyayana or son of two fathers. This term has a
two-fold acceptation. Originally it appears to have been
applied to a son who was begotten by one man upon the wife
of another, but for and on behalf of that other. He was
held to be entitled to inherit in both families, and was bound
to perform the funeral oblations both of his actual and his
fictitious father (e). This is the meaning in which the term
is used in the Mitakshara, but sons of this class are now
obsolete (/) Another meaning is that of a son who has been
adopted with an express or implied understanding that he is
to be the son of both fathers. This again seems to take place
in different circumstances. One is what is called the Anitya,
or temporary adoption, where the boy is taken* from a different
gotra, after the tonsure has been performed in his natural
family. He performs the ceremonies of both fathers, and
inherits in both families, but his son returns to his original
gotra (g). This form of adoption is now obsolete (h)

The only form of dwyarnushyayana adoption that is not
obsolete is the nitya or absolute dwyarnushyayana in which a
son is taken in adoption under an agreement that he should be
the son of both the natural and adoptive fathers It appears
to be obsolete in Madras on the East Coast (i) But in the
West Coast among the Nambudri Brahmans, it is the ordinary
form (/) . In Bombay and the United Provinces its existence is

id) (1899) 26 LA, 83, 22 Mad., 383 supra Where a contract
IS made by the adopter to leave his separate or self-acquired property
to the adopted son and he bequeaths his property to another, the
adopted son could only obtain specific performance of the agreement
or compensation for the breach but would not become, merely by
virtue of the contract, the owner of the properties Chhatra Kuman
Devi V. Mohun Bikram Shah (1931) 58 lA, 279, 10 Pat, 851,
868, 869

(e) That is the Ksheiraja son Baud, IT, 2. 18, 19, Yajn , fl,
127; Nar., XIII, 23, Dat Chand , II, 35

(/) Mu., I, X, 2, 2 Stra H L , 82, 118

(g) 2 Stra HL, 120, 1 W MacN , 71; see futwah of Pandits in
Shumshere v Dilraj 2 SD, 169 (216), Dat Mima, VI, 41-43, Dat
Chand, II, 37, Behan Lai v Shib Lai (1904) 26 AIL, 472

{h) Basappa v. Gurlingawa (1933) 57 Bom, 74, 76.

(i) Stra. Man, s. 99, Mad. Dec of 1859, p. 81; Dat. Chand., V,
s, 33, V. May., IV, 5, ss. 22, 25; Dat. Mima., VI, ss. 34-36, 47, 48,
W.B., 898. Mr. V. N Mandlik says that, whatever the theory may
be, such adoptions are in practice obsolete, p. 506.

- (/) Vasudevan v. Secy, of State (1888) 11 Mad., 157, 168,

PARAS. 208-210.]

DWYAMUSHYAYAN4.

281

fully recognised (A). It has been recognised bv the Judicial
Committee in two cases from Bengal (l\.

§ 209. Where the only son of one brother is taken in Agreement,
adoption by another brother, the double relationship appears
to be treated by the older authorities as established without
any special contract (m). This view, however, has been
rejected in a considered judgment of the Bombay High Court
which has held that an express agreement must be proved in
every case even where the son of a brother is adopted (n).

The presumption is that an adoption is in the ordinary foim;
to show that it is of the dwyamushyayana type, an express
agreement to that effect must be established (o)

The onus of proving that an adoption was of this type lies
upon those who assert it (p). So also in Allahabad it has
been held that an adoption in the dwyamushyayana form
depends upon and has its efficacy in the stipulation entered
into at the time of adoption between the natural father and
the adoptive father The whole question was recenth

considered by the Bombay High Court in Basappa Dandappa
V. Gurulmgawa Shivshankrappa (i), where it was held that
the power of giving and taking even an only son in adoption
in the dwyamushyayana form is not confined to brothers but
may also be exercised by their widows and that the agreement
or stipulation can be entered into not onlv by the fathers but
also bv their widows.

§ 210. Where a legitimate son is born to the natural After-born
father of a dwyamushyayana, subsequently to the adoption.

{k) Basava v. Lingangauda (1895) 19 Bom, 428, Chenava v.

Basangavda (1897) 21 Bom, 105, Laxmipatirao v. Venkatesh (1917)
41 Bom., 315, Huchrao Jinnaji v. Bhiurao Gururao (1918) 42 Bom,
277, (1933) 57 Bom., 74 supra, Behan Lai v Shib Lai (1904) 26
All, 472, Jolly TLL, 166

(/) Ndmadhab Doss v. Bishumber Doss (1869) 13 MIA, 85,
Umadevi v Gokoolanund (1877) 5 LA., 40, 3 Cal., 587.

(m) Dat. Mima., TI, 37, 38, VI, 34-36, 47, 48, Dat. Chand., I, 27,

28, III, 17, V, 33, 1 Stra.H.L, 86. 2 Stra.HL., 107; Steele 45, 183,
Sarvadhikari, 535, Periimal Naicken v. Pottee Animal Mad, Dec of
1851, 234, per curiam, Gocoolanund v. Wooma Dace (1875) 15 B L.R ,
415; Nilmadhub v Bishumber (1869) 13 M.I.A., 101, Chinna

Goundan v Kumara 1 Mad. H.C , 57, Vma Deyi v. Gocoolanund
(1878) 5 T.A.. 42, 3 Cal., 587, V. May., IV, 5, 21, 22.

(n) Laxmipatirao v Venkatesh (1917) 41 Bom., 315

(o) Huchrao Timmaji v. Bhimrao Gururao (1918) 42 Bom., 277.

(p) (1917) 41 Bom., 315, (1918) 42 Bom., 277 supra

(g) Behan Lai v. Shib Lai (1904) 26 All., 472.

(r) (1933) 57 Bom., 74, 77; Krishna v, Paramshn (1901) 25
Bom., 537»

282

IJVW OF ADOPTION

[chap. V,

Succession

Adoption of
an orphan

the latter takes half the share of the foimer; if, however, the
legitimate son is born to the adopting father, the adopted son
takes half the share which is piescnbed by law for an
adopted son, not being a dwyainushyayana in competition
with a subsequently bom aurasa son ( 5 ), that is, half
of one-fourth or one-third, according to the doctrines of
different schools (§ 192) The Ma\ukha, however, seems
only to allow him to inheiit in the adoptive family, if there
are legitimate sons subsequent! v born in both, and then gives
him the share usual in such a ( ase where the adoption has
been in the ordinary form, that is, one-fourth or one-third f^)

It lavs down no rule for the case of legitimate sons arising in
one fani'lv onlv

55 211 The son adopted in the dwyamiishyayana foim
inherits both m the family of his birth and in the family of
his adoption Similailv on his death, his hens are to he found
in both families without any preferem e given.,to either familv
In Behan Lai v Shib Lai (i/ ) , it was held that a natural inothei
of a Hindu adopted into another hiandi of his lamilv bv the
nitya dwyamiishyayana foim of adoption does not, on account
of such adoption, lose hei right of succession to her son in the
absence of nearer heirs On the death of a son adopted in
this form, his adoptive mothei and natiiial mother inheiit
equally as to-heii esses propeitv left by him (v)

§ 212 Wheie a custom in derogation of Hindu law
permits an orphan to be validlv adopted, it would seem he
has the same status a® a natiiial-horn son (w) Where such a
custom IS proved co exist, only to that extent it supersedes the
general Hindu law, which still however legulates all beyond
the custom (a;) It would therefoie seem not to he necessary
that he should prove a custom icgulatmg his rights of
succession (y) A custom permitting the adoption of an
orphan can only stand on the same footing as a custom

is) Dat. Ch , V, 33, 34

(t) V May, IV, 5, 25

(u) (1904) 26 All, 472

iv) Basappa Dandappa v Gurulingawa Shivshankrappa (1933)
57 Bom , 74

(w) Ramkishore v Jainarayan (1922) 48 I A, 405, 412-14, 49
Cal, 120, Chirnan Lai v Harichand (1913) 40 I A., 156, 40 Cal, 879,
Purshottam v Venichand (1921) 45 Bom, 751.

{x) Neel Kisto Deb v Beerthiinder (1869) 12 M.I A , 523
(y) The dictum in Snbrainanian v Sumasundaram (1936) 59 Mad,
1064, 1070-1 seems wron^ ft js not like the succession to a mutt
which, as there is no frenoial Hindu law ^oviTiiinf? it, is legulaled
entirely by usage.

PARAS. 2 1 2-21 'I.]

INVA1.U) ADOPTIONS.

283

permitting a brother or a daughter’s son or a married man to
be adopted. The adoption of an orphan where it is valid by
custom cannot be held to revive the obsolete institution of
svayamdatta or the kritrima except in Mithila (z) .

§ 213. An adoption may be invalid not only foi non-
compliance with any of the requirements of Hindu law
on the matter, but also on the ground that it was the

result of coercion, fraud or undue influence (a). The
question whether an adoption which has been pro-
cured by coercion, fraud or undue influence is void ab initio Ratification,
or is only voidable has given rise to conflicting views.

In Sri Rajah Venkata v. Sri Rajah Rangayya (b) it

was held that an adoption made under coercion is only void-
able as a contract. But m Salhiraju v. V enkalaswanii, Sadasiva
Ayyar, J., observed: “The act of adoption is not an act in the
nature of a contract, and the validity of an act changing the
status of a persbn cannot be made to remain in suspense at
the option of one of the actors in the transaction” (c). When
both the giver and the taker have full legal capacity to consent
and they only are concerned and there is no question of an
unwilling boy of sufficient age being coerced into it, it is
difficult to see why the adoption should not be treated as

voidable only and capable of being acquiesced in or

ratified (c^).

§ 214. In Murugappa Chetly v. Nagappa Chetty (c^), Consideration
it was held that the receipt of money by the natural father lor giving in
in consideration of giving his son in adoption though illegal
and opposed to public poli( y, does not make the adoption
invalid, as the gift and acci ptance of the boy is a distinct
transaction clearly separable from the illegal agreement and
payment.

(z) Pappamma v Appa Row (1893) 16 Mud.. 384, 393.

(fl) Bayabai v Bala (1870) 7 Bom HC App , 1; Somasekhara v.
Subhadramaji (1882) 6 Bom., 524, Shri Sitram v. Harihar (1911)
35 Bom., 169, 179-180, Ghanshyamdas Vishnudas v. Laxmibai (1922)
24 Bom. L R., 726, Ranganayakamma v Alwar Chetty (1890) 13 Mad,
214, Sri Rajah Venkata v. Sri Rajah Rangayya (1906) 29 Mad, 437.
(Revd. by the Privy Council on another point). Compare Narada IV,
9, 10.

(b) (1906) 29 Mad., 437 supra

(c) (1917) 40 Mad. 925, 930, Per Oldfield, J., at pp. 936-937,
Compare V enkatacharyulu v Ranguc hary ulu (1891) 14 Mad., 316, 320.

(c^) Compare Scott v. Sebright (1886) 12 Prob., 21.

(c2) (1906) 29 Mad., 161; Subbaraju v. Narayanaraju (1926) 51
M.L.J., 366, 371, Narayan Laxman v. Gopalrao Trmbak (1922) 46
Bom., 908.

284

LAW OF ADOPTIO^

[chap, V,

Effect of an

invalid

adoption

ji 215 It was held by the Madras High Court as early as
1863 that an invalid adoption of a person does not affect
his rights in his natural family nor does it confer upon him
any rights to maintenance in the adoptive family. He loses
nothing and acquiies nothing. It is as if no adoption ever
took place (d). The view taken by the Madras High Court,
that an adoption must he effectual foi all purposes, or a
nullity, has the merit of being piactical and intelligible, while
doing substantial justice to all parties. It was follow^ed
by Sir Michael Westiopp, C. J., who obseived: "‘An
invalid adoption works nothing It leaves the alleged adoptee
precisely in the -^ame position which he occupied before the
ceremony, no matter how formall> it mav have been celebrat-
ed ”(e). As was succintlv stated b\ the Judicial Committee,
‘where a man’s adoption was whollv invalid, he is in the view
of the law an absolute stranger’ ( f) An exception has been
sought to be made where upanayanam or marnage has been
performed in the adoptive famih But as observed b\
Mutluswami Avvai. J . "*the ceremony is inefficacious because
of the invalidilv of the adoption, and there is no objection
to its being lepeated in the natural family as is generally done
when the ceiemonv fust performed had some essential defect
which rendered it inefficacious As to the contention that
upanayanam has the effect of fixing the ^otia it would be
valid only if the upanayanam ceieniony itself were valid” fg)
In a later case this view has been affirmed after a fresh exami-
nation of the relevant texts ( /i ) . Accordingly a person whose
first adoption is invalid (‘an validlv be given and taken in

id) Baiiam v. Ambabay (1863) 1 Mad HC. 363

(c) Lakshmappa v Ramava (1875) 12 Bom. H C., 364, 397, see
Parvatibayamma v Ramakrishna (1895) 18 Mad., 145, 151 » Vaithi-
lingani v. Miirugaian (1914) .37 Mad , 529, Dalpatsingji v Raisingji
(1915) 39 Bom, 528, Vaman v Venkaji (1921) 45 Bom, 829, Sajani-
sundari v Jogendra (1931) 58 Cal, 745, 749, Harida% Chatterjee \
Manmathanath Maker ji [19371 2 Cal, 265, 302 The observations to
the contrary in Rajcoomaree v Nobocomar (1856) 1 Boulnois, 137.
Ayyavu v Niladatchi (1863) 1 Mad HC, 45, , 363, 367, and in

Eshan Kishor v Hans Chandra (1874) 13 BLR, Appx , 42, 12 W R ,
381, are no longer good law [1937] 2 Cal, 265, 302 Dat Mima, V,
45, and Dat. Chand , II, 17, V, 13, are only directory and have been
so treated The Dat Mima , III, 1-3 appears to lay down that adoption
of one of a different class is invalid ‘Food and raimant’ or main-
tenance IS in all cases mentioned as a compassionate allowance The
text has no obligatory force

(/) Ram Kishore v Jainarayan (1913) 40 I A., 213, 40 Cal., 966,
980.

(g) Parvatibayamma v Ramakrishna Row ( 1895) 18 Mad , 145
152

(A) Viswasundara v, Somasundara (1920) 43 Mad., 876, 89193,

PAHAS. 215-21 6 . J (,IFTS WHEN ADOPTION INVALID. 2S5

adoption and the performance of upanayanam after his first
invalid adoption will not be a bar to his subsequent adop-
tion (i). Nor can the marriage of a person whose adoption
is invalid, whether he is a Sudra or of the twice-born classes,
destroy on principle his rights in the natural family. If he
is so married, it is what, on an invalid adoption, is prescnlied
as a moral, if not a legal, obligation (/). To the extent to
which the marriage expenses have been borne by the family in
which he is taken, he is benefited. But as the Daltaka
Mimamsa cleailv lays down (A;), his filial relation is not
produced. In what cases and to what extent estoppel prevents
the adoption being disputed is quite a different question (A:*).

§ 216. The validity of an adoption often becomes mate- Gift or
rial as determining the validity of a gift or a bequest. Suppose to ^

a gift is made to a person who is believed to be an adopted is^

son, but whose adoption turns out to be invalid, is the gift invalid,
to fail or to stand good? The answer to this question docs
not depend upon any special doctrine of Hindu law, but upon
general piinciples applicable to all similar cases Where a
gift or bequest is made to a certain person under the belief
that he filled a certain chaiacter and the language shows that
the intention of the donor or testator was that the person
named should take the gift or bequest onl\ in that character,
the gift or bequest fails if the belief turns out to have been
mistaken and the pre-supposed condition does not exist. But
where a gift or bequest is made to a person as possessing a
particular character, the intention may be to benefit a
designated individual, the words refeiring to the chaiacter oi
relationship being merely a matter of description. In the
latter case, if the identification is complete, the gift or bequest
prevails though the description turns out to be incorrect. The
distinction between what is descriptive and what is the reason
or motive for the gift or bequest may often be very fine but
it is a distinction which must be drawn from the consideration
of the language and the surrounding circumstances. Wherc^
therefore the assumed fact of the donee’s adoption is the
reason and motive of the gift and indeed a condition of it,

(i) (6. Bhau Abaji Deshpande v. Han Ramachandra A.I.R. 1923
Bom., 301.

(/) Dat. Mima, V, 45.

(A,) Dat. Mima., V, 46. 5ee also Dat. Chand., VI, 3.

(A;i) See post § 219.

286

LAW OF ADOPTION.

[chap. V,

Breach of
agreement
to adopt.

the gift fails if It turns out that there is no valid adoption (/).
Where however a gift is made to a person in the erroneous
belief that he is an adopted son but the intention is to beneht
him in any event, it is a gift to a persona designata, which
does not depend upon his being in law an adopted son {rn).
Where again a gift or bequest is made to a person as an
adopted son and it appears that the donor or testator knew
he was not an adopted son, the false description does not
prevent the gift taking effect (n) So a foster child, that is,
one who has been taken into the family of another, nurtured,
educated, married and put forward in life as his son, but
without the performance of an actual adoption, does not
obtain any rights of inheritance thereby io) But a gift made
to such a person by his foster-father, if in other respects valid,
will not be made void, merely because he was under the
mistaken belief that the fostei-son would be able to perform
his funeral obsequies {p)

^ 2L6-A It was said b\ the f^iivy Council m an old case,
that where there is an agieemenl between two pailies to give or
accept a child in adoption, bieach of it by one of the paities is a
good ground for an action for daniag(*s or for stiecific perform-
ance (pM* This would seem to be a very doubtful proposi-
tion at least so far as the remedy by way of specific perform-
ance is concerned Adoption is a question of status like that
of husband and wife Neither the child nor the giving or taking
in adoption can at all be a propel subject for specific

U) l^amndta Deb v Rajeswar (1885) 12 I A , 72 11 (.al , 463,
Surendro Keshav \ Door fiasundan (1892) 19 1 A , 108, 19 (..al , 513,
Lali V Murhdhar (1906) 33 I A, 97, 28 All, 488» Kararribi \ harsari'
das (1899) 23 Bom, 271, PC, affg (1896) 20 Bom, 718, Sharnavahoo
V. Dwarkadas (1888) 12 Bom, 202, Abba v Ruppaimnal (1893) 16
Mad., 355, Ishar v. Surat (1923) 4 Lali , 356

(m) Nidhoomoni Debya v Saroda Per^had (1876) 3 lA 253, 26
^ WR, 91, Hireswar v Arda Chunder (1892) 19 I.A , 101, 19 Cal, 452,
Subboraytr \ Subbatumal (1901) 27 lA, 162, 21 Mad, 214, Dira
Naikin v Radha ISaikin (1913) 37 Bom, 116, Bai Dhondubai v.
Laxmanrao (1923) 47 Bom, 65, Miirari Lai v Kundal Lai (1909)
31 All, 339, Khub Singh v Ramyi Lai (1919) 41 All, 666. Probadh
Lali V. Harish Chandra (1904) 9 CWN, 309, hlavaneetha Marudappa
Thevar v The ( ollector of Tinnevelly 69 M L J , 632 affirmed in (1938)
65 r A , 93, 42 W N , 449

(/i) V enkalasurya v The ( ourt of Wards (1899) 26 I A, 83,

22 Mad, 383, affg. 20 Mad, 167 Compare Hill v Crook 6 HL, 265.

(o) 2 btr HL, 111, 113, Steele, 184 Bhimana v Tayappa Mad.
Dec. of 1861, 124, Sorg HL, 142 Co Con, 369.

(p) Abhachari v Ramachandrayya (1863) 1 Mad. H C , 393.

(pi) Sree Narain Muter v. Sreemutty Kishrri (1872) I A, Sup.
Vol., 149, 160.

PAUAt). 210-21 7. J

hVIDENCE 01* ADOPTION.

287

performance; and none but the refusing parent can either give
or take in adoption.

§ 217 . Sixth, the Evidence of an Adoption: —

There is no particular kind of evidence required to
prove an adoption. Those who rely on it must establish
it like any other fact, whether they are plaintiffs, or defend-
ants (^). Any person who seeks to displace the natural
succession of property by alleging an adoption must discharge
the burden that lies upon him by proof of the factum of
adoption and the performance of any necessary ceremonies
as well as all such fads as are necessary to constitute a valid
adoption. Where the adoption is by a widow, her authority
to adopt must also be pioved (r). No writing is necessary; Writing
though, of course, iri case of a large property, or of a person
of high position, the absence of a writing would be a circum-
stance which w^mld call for stmt scrutiny, and for strong
evidence of the actual fact {s) . Nor is it even in all cases
necessary to pioduce direct evidence of the fact of the adop-
tion, where it has taLen place long since, and where the
adopted son has been treated as such by the members of the
family and in public transac lions, every presumption will be
made that every cncuinstaiice has taken place which is necessary
to account foi such a state of things as is proved, or admitted,
to exist (i). To insist upon proof of facjtum of adoption in
such cases would lead to the anomaly that the older the

((/) Chowdry Pudum v. Koer Oodey (1869) 12 M.l.A , 350, 356-7,
Kishori Lai v Chunni Lai (1908) 36 I A., 9, 12, 31 All., 116; Tarim
Charan v Saroda Sundari 3 BLR., A.C.J , 146, 11 W.R , 468, Hur
Dyal Nag v Roy Kri^hto 24 W.R , 107

(/•) Dal Bahadur Singh v Bijai Bahadur Singh (1930) 57 I.A., 14,
19, 52 All., 1, 6, Balak Ram v. Nanun Mai (1930) 11 Lah , 503. See
Iluradheen v Miithoranath (1849) 4 M I.A., 414, where the Privy
Council reversed concurrenL decisions of the lower Courts finding
against the adoption, Chandra Kiinivar v Chandhri Narpat Singh
(1907) 34 I A., 27, 29 All., 184 (admission shifts the onus), Lai
Kunwar v Chiranji Lai (1910) 37 I A, 1, .32 All, 104; Padmalav v.
Fakira Debya AIR. 1931 P.C., 84, 60 M.L.J , 619; Lai Harihar v
Bajrang (1937) 2 MLJ, 711, 41 C W N., 1126, Lai Durga Bakhsh
V. Rani Brij Raj Knar aIr 1938 P.C , 40.

(s) Sootrugun v Sabitra (1834) 2 Kn P.C, 287, Ondy Kadaron
\ Aioonachella Mad. Dec of J857, p. 53, Diwaker Rao v. Chandanlal
Rao (1917) 44 Cal, 201 (PC ).

(t) Perkttiih Chunder v Dhunrnonnee S.D. of 1853, 96; Nittianand
v Krishna Dyal 7 BLR., 1 , Rajendro Nath v. Jogendro Nath 14
M I.A., 67, Hur Dayal v Roy Krishto 24 W.R., 107; Sabo Bewa v.
Nuboghun 11 WR, 380. Vyas Chinianlal v Vyas Ramchandra (1900)
24 Bom, 473, Lai Achal Ram v. Kazim Hussain (1905) 32 I.A., 113
at p. 121, 27 All, 271, Mi Hindu Knar v. Lalita Prasad (1936) 41
C.WJV.. 161, A.1.R 1936 P.C., 304.

Law of adoption

[chap. V,

Jsa

adoption set up the more vulnerable becomes the occupant’s
position ( w ) In Kanchurnarthi V enkata Seetharama
Chandra Rou v Kanchurnarthi Raju. the authority of a widow
to make an adoption was in fact questioned by a reversionary
heir forty-two years after the adoption. The Judicial
Committee observed that ‘"after such a long term of years, and
the variety of transactions oi open life and conduct, upon one
footing, and one footing alone — namely, that the adoption
v\as recognised as a \alid ad — the burden, resting, altogether
apart from the law of limitation, upon any litigant who
challenges the authority of an admitted adoption, is indeed
of the heaviest order” ( v )

Effect of rcA § 218 A decision in favour of or against an adoption, in

judicata a suit in which it was in dispute, will of course only bind the

parties to the suit and those claiming under them (w;) Though
a deciee establishing an adoption in a suit not inter paitie^
might not be admissible as evidence ol its* truth, both the
deciee and the pioceeding in which it was made might be good
evidence of th(' successful asseilion of the right undei
Sec. 13 ol the Indian Evidence Act ix) Wheie a Hindu
widow sued foi a declaration that an adoption made
b\ hei to hei dc'c'eased husband was invalid and

the ^uit wa*^ dismissed on the ground that she was
perscmallv (^stopped by her conduct fiom denying the validity
of the adoption and also on the ground that the adoption was
valid upon the facts, it was held by the Judicial Committee
that the personal estoppel did not prevent her from repiesent*
ing the estate in the pievious suit and that the formei decision

iu) Raniakribhna Rdlai v. Tirunarayana Riliai (1932) 55 Mad., 40,
56. bee Lula Rup ^araln v Copal Devi (1909) 36 I A , 103, 36 Cal,
780 (lapse of time), Frem Devi v Shambhu l\ath (1920) 42 Ml,
382 (lapse of lime)

(i;) (1927) 5i MLJ, 858, 861, P.C , Lapse of time is like that
lepute which much relied on in cases of disputed marriage oi
legitimacy Rajendronath v Jogendro Nath (1870) 14 M.l A , 57,
Anandrav v. Ganedi (1870) 7 BHC Appx. 33, Ajabsing v Nanabhau
(1898) 26 LA, 48, 3 CWN, 130 (pedigree), Achal Ram v Kazim
(1905) 32 l.A 113 27 AIL. 271 (tradition in wajih ul-arz)

{w) It IS not binding on strangers; Varakalamma v Anakala 2
Mad H C., 276, Kanhya v Radha Churn 7 W.R., 388, F.B , at p. 341,
followed in Jogendra Deb v Funundro (1870) 14 MIA, 369

Katama Nachiar v. Raja of Swaganga (1863) 9 M.I.A . 539,

Juinoona Dassya v Hamasoonderai (1876) 3 I.A., 72, 84, 1 Cal, 289

(x) Ram Ranjan v Ram Narain (1895) 22 I A., 60, 22 Cal, 533,
Dinomoni Brojo (1902 ) 29 LA, 24, 29 Cal, 187; Collector of
Corcikpur v. Ram Sundar Mai (1934) 61 I A , 286, 56 All, 468, 490,

Cobinda Narayan v Shyam Lai (1931) 58 I A , 125, 136, 58 Cal, 1187,

Sir Kesha Frasad v Mt Bhagjogra (1937) 2 MLJ, 631, 643 PC.

PARAS. 2lt]-2l9.J

ESTOPPEt.

289

which was given on the merits was binding upon the
reversioners (y).

§ 219. A person otherwise entitled to question an
adoption may by his declaration, act or omission, be estopped
from disputing it, if the conditions of Sec. 115 of the Indian
Evidence Act. 1872 are fulfilled. But estoppel is purely
personal and it cannot affect anyone who claims by an
independent title and who is not bound bv the acts of the
person estopped ( 2 ). Where a widow who made an adoption
to her deceased husband had represented that she had an
oral authoiity to adopt, but after the adoption contended that
the authority did not extend to making the particular adoption
and that it had become exhausted, it was held that she was
estopped from disputing the validity of the adoption, but
that the estoppel was puiely peisonal to her (a). In that
case the adopted son had been maiiied on the faith of his
adoptive mothers woid. In another case, where a lioy was
adopted and his upanayanam and mariiage weie pc i formed
in the adoptive family, and for many yeais he pertoimed the
sraddhas and other ceremonies also in that family, it
was held that those who by their conduct inspired that belief
were estopped from denying the validity of the adoption (6).
But estoppel does not conveit an invalid adoption into a
valid one (c). It is only a lule of evidence which under
certain special circumstances can be invoked by a party to an
action (dj. To operate as an estoppel, the repiesentation
must be of a matter of fact and not an eironcous expression
of opinion that an adoption was valid in law (e). Where a
will on its tiuc construction precluded a widow from adopting

(>) Risal Singh v. Balwant Singh (1918) 45 I.A., 168, 179, 40
All., 593

(z) Dharam kiiniuir v Balwant Singh (1912) 39 I A , 142, 34
All., 398, Dlianraj v. Sonihai (1925) 52 I A., 231, 52 Cal., 482, Saint
('.hundcr l)cy \ Copal Cliundcr Laha (1892) 19 I A , 203, 209-212,
20 Cal., 296, see Dliantaj v. Sorubai supia, disUnguishe3 jii Subiti’
nianian v. Somasundaram (1936) 59 Mad., 1064, 1081.

(rt) (1912) 39 I.A., 142, 34 All., 398 supra, V enkatasubbamma v.
Venkamma (1924) 46 M.L.J., 52, Sudarsana Rao v. Seetharamma
(1933) M.W.N., 1148.

(6) Santappayya v. Rangappayya (1895) 18 Mad., 397.

(c) (1925) 52 I.A., 231, 241, 52 Cal., 482 supra, per Ramesam, J.,
in (1933) M W.N., 1148.

(d) Maritime Electric Co, v. General Dairies, Ltd, [1937] A C ,
610, 620.

(e) Gopee Lall v. Chundraolee (1872) LA. Sup. Vol. 131, 133,
(1925) 52 I.A., 231, 242 supra; Kalawati v. Dharam Prakash (1933)
60 I A,, 90, 55 AIL, 78 revg. (1928) 50 AIL, 885.

21

Estoppel.

290

LAW OF ADOPTION.

[chap V,

Statute of
Limitations

the son of a daughter of her brother, it was held that she was
not estopped fiom denying that the adoption she made was
invalid under the terms of the will if) . In order to create an
estoppel, It IS quite unnecessarv that the person whose acts or
declarations induced another to act in a particular way should
have been under no mistake himself, or should have acted with
an intention to mislead oi deceive Estoppel mainly results
from the fact that another has been induced to act, as he would
not otherwise have done, in reliance upon personal representa-
tions, acts or omissions (g) Neither acquiescence nor even
presence at an adoption ceremony would create an
estoppel [h).

§ 220 Under the Limitation Act IX of 1871, a reversionei
whose right to sue foi po'-'session accrued upon the death of a
Hindu widow was not gi\en an^ further time than the twelve
vears provided undei Ait 129. Sc'h II of that Act when he had
to recover the property tioni a person holding under colour
ol «in adoplion The lutdvc- veais presciibed under Art 129
began to run, not from tli(‘ dale of ihe death of tlie widow, but
tiom the date of the adoption oi (at the option of the plain-
tilf) the date of the death of the adoptive father Art 129
applied in terms to a suit to set aside an adoption But it
was held by the Privv Council that the phraseology covered all
rases wheie, without displacing the adoption, the plaintiff
< ould not rerovei possession ii). But now undei the Indian
Limitation Ad, 1908, as under the immediately preceding Ad
of 1877, Alt 118 of S('h I which prescribes a period of six
vears applies onl) to a suit under Sec 12 of the Specific
Relief A(t, J877, foi a declaiatory deciee that an adoption is
invalid or did not lake place The article applicable to a

ij) (1933) 60 1 \ , 90, 55 All, 78 supra

ig) Sarat ( handtr \ Copal ( hunder (1892) 19 lA, 203, 215,
20 ('dl , 296, 310-311 oveunlinj^ Ganga Sahai v Hira Singh (1880)
2 All, 809 FB ami Vishnu v. Knshnan (1884) 7 Mad, 3 on this
point

(A) Vaithilingam \ I\atesa (1914) 37 Mad, 529 which approved
of the principles laid down in Gopalayyan v Raghiipatiayyan (1873)
7 MHCR 250 and Rarvntibnyamma \ Ramakrishna Ran (1895)
18 Mad, 145, Rapamma v 4ppa Ran (1893) 16 Mad, 384, 391 Sec
also Narsingdas \ Rahunanbai (190 i) 28 Bom, 440, and Kannamal
V I erasarm (18921 15 Mad, 486

(t) Jugadamba ( houdhrani \ Dahhnia Mohun (1886) 13 1 A., 8i,
13 Cal, 308, explaining Raj Bahadur \ Achumbit Lai (1879) 6 I A,
110, Mohesh Narain \ Tarurk Nath (1893) 20 T A , 30, 37, 20 (]al ,
487, Malkarjun v Narhan (1901) 27 I A , 216 230, 25 Bom, 337,
352, Vaithilinga Mudaliat \ Snrangath Amu (1925) 52 I A, 322,
48 Mad, 883.

PARAS. 220-222.]

I.IMITATION.

291

suit by a rerersioner for possession of immovable property
on the death of a Hindu female is Art. 141, even if it is
necessary to decide in the suit whether an adoption was or
was not valid (;).

Article 119 fixes a limit of six years to a suit “to obtain a
declaration that an adoption is valid”, the period beginning
to run from the lime “when the rights of the adopted son as
such are interfered with”. It must now be taken that this
also applies only to suits for declaratory reliefs and not to
suits for recovery of possession {k) ,

A suit for a declaration that an adoption is invalid is a
representative suit, and the reversioner bringing it does so on
behalf of himself and the whole body of reversioners (/) .
According to the Madras High Court, all of them have but a
single cause of action, and the time begins to run from the
date when the adoption becomes known to the next rever-
sioner (m). •

§ 221. Neither the law of Estoppel nor the Statute of Creates right
Limitations can make a person an adopted son if he is not status,

one. They can secure him in the possession of certain lights,
which would be his if he were adopted, by shutting the
mouths of particular people, if they propose to deny his
adoption; or, by stopping any suit which might be brought
to eject him from his position as an adopted son. But if it
becomes nccessaiy for the person who alleges himself to have
been adopted to piefer a suit to enforce lights of which he
is not in possession, he would be compelled strictly to prove
the validity of his adoption, as against all persons but the
particulai individuals who were precluded from disputing it.

§ 222. It IS haidly necessary to say that, as under the Widow
ordinary Hindu law, an adoption by a widow must always
be to her husband, and foi his benefit, an adoption made by herself

(;) Kalyanadappa v. Chanhasappa (1924) 51 I A, 220, 48 Bom,
411 revg, 41 Bom., 728, overruling Srinivasa Sargerar v. Balwant
Venkatesh (1913) 37 Bom, 513 and approving Velaga Mangamma v
Bandlamudi (1907) 30 Mad, 308, Padmalav v Fakira Debya (1931)
60 M L.J , 619 P.C.

(A) Bhagirathi v Appa (1934) 58 Born., 280, Lali v Murledhar
(1902) 24 All., 195, Chandania v Salig Ram Q904) 26 All., 40,
Jagannath v Ranjit (1898) 25 Cal, 354; see the dissenting judgment
of Bhashyain Iyengar, J., in Ratnamasari v. Akilandammal (1903) 26
Mad,, 291, Gangabai v Tarabai (1902) 26 Bom, 720, and (1903)
26 Mad, 291 supra are no longer good law.

(/) V enkatanarayana v. Subbammal (1915) 42 I A., 125, 38 Mad ,
406, (1924) 51 I A, 228, 233-4, 48 Bora., 411 supra,

(w) Polepeddi V enkatasivayya v. Polepeddi Ademma (1921) 44
Mad., 218; see Varamma v. Gopala (1918) 41 Mad, 659 F.B.; but
see Das Ram Chowdhury v. Thirtha Nath Das (1924) 51 Cal., ICi.

[chap. V,

292 law op adoption.

her to herself alone would not give the adopted child any
right, even after her death, to propel ly inherited by her from
hei husband (n). Nor, indeed, to hei own properly, however
acquired, such an adoption being nowhere recognized as
creating anv new status, eviept in Mithila, under the Kritrima
form With this exception a Hindu woman (an in no
circumstances adopt a son to herself even if she were a

prostitute (o).

Nandapandita in his Dattaka Mimamsa would construe
^putra (or son) as im luding a daughter and he draws
the inference that on failuie of a daughter, a daughter

of another could be adopted He supports his conclu-

sion by refeiiing to ancient piecedents, such as the adoption
of Shanta, the daughter of King Dasaratha by King

Lomapada and the adoption of Piitha or Kunti, the daughter
of Sura by Kunti Bhoja (/>) This view is sharplv criticised
by Nilakantha in the \vavahara Mayukha (?/) . It is now
settled that the adoption of a daughter is invalid under the
Hindu law' it) But among daiuing girls it was ('uslomaiv,
in Madras and Pondicheirv and m Western India, to adopt
girls to follow then adoptive mother’s piofession. and the
girls so adopted succe('ded to then ])ropeilv No particular
ceremonies were necessary, lecognitioii alone being suffi-
cient (5). In Calcutta and Bombay, however, such adoptions
have been held illegal (/) But in Madias, an adoption
of a daughtei bv a dancing giil. where it is not foi the purpose
of piostitution, has been held to be valid b> custom ( w ) The

Adoption of
daughters.

Among
dancing girls.

(/;) (Jiotidhr) Piidum v. Koer Oodc) (1869) 12 M.I.A., 350, 356.

(o) I\(ircndia IS'ath Baiiagi v Dina Nath Das (1909) 36 Cal, 82L

(p) Ddt Miina, VII, 30, 34

iq) V Md>uklid, IV, \, 6-7

ir) Gnugabai \ Anant (1889) 13 I3oin , 690 Jn le Munsln Ram
(1931) 12 Lali , 658, 660, 661, Ham Plan v Diivan Shiv Ram AIR
1931 Lah, 659 (2).

(s) \ cnhalndivllum v ^ enkata^nnm^ Mad Dec of 1856, 65,
Stra Man, 98, 99, Steele, 185, 186, Sorg IlL, 321, Co Con,
90. 124, 337, 311 Jn the absence of a special cnslom, and on the
analogy of an ordinary adoption, only one girl can be adopted V enku
V Mahahnga (1888) 11 Mad., 393, Muttukannu v Paramasami (1889)
12 Mad, 214, bhanmugam Pillai v. Knshnavcia 1931 M W N., 288.

(f) Hencower v Hanscower 2 M. Dig , 133; Mathura v Esu (1880)
4 Bom, 545, Hira Naikin v Radha Naikin (1913) 37 Bom., 116. See
also Guddati v Ganapati (1912) 23 M.LJ, 493.

(li) Veeranna v. Sarasiratnam (1936) 71 M.L.J , 53, (1936)

M W N , 555, in which a Bench of the Madras High Court has
reviewed all the authorities.

PARAS. 223-224.]

KRITRIMA ADOPTION.

293

question of the legality of such adoptions has already been
discussed

§ 223. Kritrima Adoption. — ^According to the Dattaica
Mimamsa the Kritrima form is still recognized by the general
Hindu law, since the modern rule, which refuses to recognize
any sons except the legitimate son and the son given, includes
the Kritrima under the latter term(i;). But the better
opinion seems to be that this form is now obsolete,
except in the Mithila country where it is the prevalent
species {w) ^ and among the Nambudri Brahmans of the West
Coast where it exists along with the usual form (jc) . It is not
known in the Punjab (y).

The Kritrima son is thus described by Manu (z) : “He is
considered as a son made (or Kritrima), whom a man takes
as his own son, the boy being equal in class, endued with
filial virtues, acquainted with (the) merit (of performing
obsequies to his adopter) and with (the) sin (of omitting
them).” The Mitakshaia adds the further definition “being
enticed by the show of money or land, and being an orphan
without father or mother; for. if they be living, he is
subject to their control” (a).

§ 224. No ceremonies or sacrifices are necessary to the
validity of a Kritrima adoption. “The form to be observed
is this: At an auspicious time, the adopter of a son having
bathed, addressing the person to be adopted, who has also
bathed, and to whom he has given some acceptable chattel,
says: ‘Be my son.’ He replies: ‘I am become thy son.’ The
giving of some chattel to him arises merely from custom.
It is not necessary to the adoption. The consent of both
parties is the only requisite; and a set form of speech is not
essential” (6).

See ante § 37

(v) Dat. Mima. IT. 65

(w) Suth. Syn., 663, 674, 3 Dig., 276, 2 Sira. H.L., 202, note to
Sutputtee V. Indranund 2 S.D , 173 (221), Madhaviya. s. 32
Mr. Sarvadhikari says (526) that this form of adoption is still
practised m Bihar, Benares and oilier places, citing the note to
Stnkant Sarma v. Radhakant 1 S.D A., 15 (19) ; Kamla Prasad v
Murli Manohar (1934) 13 Pat., 550.

(jc) Vasudevan v. The Secretary of State (1888) 11 Mad., 157,
174, 176.

(y) Shri Dev v. Dwaraka Das AIR. 1933 Lah., 1050.

{z) Manu, IX, 169.

(а) Mit., I, XI, 17.

(б) /tudmdAara, cited in note to Mitakshara^ I, xi, 17; 1 W. MacN.,
98; Kullean v. Kirpa X S.D., 9 (11) , Durgopal v, Roopun 6 S.D.,
271 (3^).

Prevails in
Mithila.

De^^rnbcd

Ceremonies.

294

LAW OF ADOPTION

[chap. V,

Only adult.

Results of
adoption

§ 225 The consent of the adoptee is necessary to an
adoption in this form (c), and the consent must he given in
the lifetime of the adopting father (d) This involves the
adoptee being an adult Consequently there appears to be
no limit of age Beyond the requirement that the Kritrirna
son should be of the same caste as the adoptei, there does not
appear to be any other restriction Neilhei the performance
of his upanayana nor marriage in the natural family is a bar
to his adoption in the Kritrima form (e). It appeals that in
the Mithila country, a minor ran be adopted in this form with
the consent of his parents {/) The Milakshara however
states that it is an orphan who can be adopted in the
Kritrima foim, it seems therefoie he should be an adult It
would however seem that the Kritrima foini of adoption
mentioned in the Smntis is not its modem form as pievalent
in the Mithila country (g). Theie. the Kntnnia form is said to
be now in almost universal use and the word ^kartaputra
will generally refer to Kritrima adoption, Kut it is at times
used in respect of the dattaka son (h)

§ 226 A Kiitnma son “does not lose his claim to his
own family, nor assume the surname of his adoptive father,
he merely performs obsequies, and takes the inheritance” (i)

A((oidmglv. the Kntnnia son losing no lights of
mheiitance m his natural family, becomes the son of two
fatheis to this extent, that he takes the mheiitance of his adop-
tive father, but not of the fathers fathei. oi other collateral
relations, noi of the wife of his adoptive father, or her rela-
tions </) Nor do his sons oi other hens take any interest
in the property of the adoptive father, the lelationship
between adopter and adoptee being limited to the contracting
parties themselves, and not extending further on either

(r) Suth Syn , 673, Bdudh , II, 2, 14, 2 W MacN , 196

(d) Sutputtee v. Indranund 2 S D., 173 (221) , Durgopal v Roopun
6 S D , 271 (340) , Luchmon v Mohun 16 W R , 179

(e) 2 Sira HL, 204, 2 W. MacN, 196, Shibo Koeree v Joognn
8 WR, 158, 1 W MacN, 76, Chowdree v Hunooman 6 SD, 192
(235), Oomum Dut v. Kunhia 3 SD, 145 (192)

(/) Lolita Prasad Chaudhury v Sarnam Singh AIR 1933 Pat ,
165, reversed on another point in AIR 1936 P C , 304

ig) W. MacN, II L, Vol I, 95-100
{h) A.I.R. 1936 PC, 304 supra
ii) Dig., II, 409, n, 1 W MacN, 76

(;) See note to Srinath Serma v. Radhakunt 1 S D., 15 (19), 1
W MacN., 76; Deepoo v. Gowreeshiinker 3 SD, 307 (410) , Sreenarain
Rai V. Bhya Jha 2 S.D , 23 (29, 34) , Shiho Koree v Jugun 8 W R , 155.

PARAS. 226-228. J

iLIvATOM ADOPTION.

295

side (A:) . Among the Nambudri Brahmans where it is desired
Ir perpetuate the line of the adopter, the adopted son receives
a special appointment to marry and raise up issue for the
illom or line of the adopter (Z). A kartaputra is liable to
supersession by the subsequent birth of an aurasa son (w).

§ 227. It has alieady been stated that in Mithila a woman
( annot adopt to her husband, after his death, whether she has
obtained his permission or not. But she is at liberty to do in
Mithila, what she can do nowhere else, viz., adopt a son to
herself, and this she may do either during her husband’s life,
or after his death. And husband and wife may joint! \
adopt a son. or each may adopt separately (n)

§ 228 A custom known as that of lllatom adoption
prevails among the Reddi and Katnrna castes in the Madras
Piesidency. consists in the affiliation of a son-in-law, in
consideration of assistance m the management of the family
{property. No religious significance appears to attach to the
act. Neither the execution of any document nor the per-
formance of any ceiemony is necessaiy. The incidents of an
lllatom adoption have not become crystallized into fixed rules
of law by a long course of decisions (o). To constitute a
person an diatom son-in-law, a specific agreement is neces-
sary. It IS not sufficient merely to show that he lived in his
father-in-law’s house, assisted his widow or managed the

(A) Juswant v. Doolec 25 WR, 255

{/) Vasudevan v Secretary of State for India (1888) 11 Mad, 157,
175, 179

(m) Kanhaira Lai Saha v Mt Saga Kuer (1925) 4 Pat, 824

(n) Fiitwah of Pundils, Siee Narain Rai v Bhyn Jha 2 SD, 23
(39, 34), 1 W MatN , 101, Collector of Tirhoot v Huropershaud
7 WR , 500, Sluho Koetee v Jngan 8 W R., 155 Among the Buddhists
of Burma, the term Kntnnia adoption is applied to cases where one »)i
more girls are adopleil into a family as daughtt rs The essential part
of such an adoption publicity and noloriety of the fact of adoption —
publicity of the relationship and of the intention of the adoptive parents
in regard to the inheritance of their estate by the adoptive child. There
are two kinds of adoption — the Keitinia child who is obtained from
Its own parents and openly brought up with a view to inherit; the
Apatitha, who has no parents and has been casually picked up and
adopted. The former stands in the same position as a natural child
for all purposes, including the right to inherit The latter is excluded
from inlieritance by either natural or Kntrima children. Ma Me Gale
V. Ma Sa Yi (1904) 32 I.A., 72, 32 Cal., 219, Maung Thse v Maung
Tun Pe (1918) 44 LA , 251, 45 Cal., 1

(o) Siibba Rao v Mahalakshmamma (1931) 54 Mad., 27, 55.

Female may
adopt to
herself.

lllatom

adoption.

296

LAW OF ADOPTION.

[chap. V,

property (p). The existence of a custom in some Kamma
families of Guntur of the affiliation of an diatom son-in-law
when there is a son living has been recognised by the Madras
High Court and by the Privy Council (q) After the death
of the adopter he is entitled to the full rights of a son, even
as against natural sons subsequently born or a son
subsequently adopted m the usual manner (r). The
affiliation of a son-in-law does not deprive the man
who takes him m adoption of the right to alienate
his property inter vivos or even to devise it by will (s) The
diatom son-in-law has no light to claim paitition with his
father-in-law unless there is an express agieement or
( iislom ( / ) The diatom son is not a copari oner with the
natural born oi adopted son, though they may live together
like an undivided family Consequently there is no survivor-
ship between them (z/) His share passes to his own heirs as
if it were separate property ( i; ) . As lietween himself and
his own descendants he takes the property as' self-acquisition,
and therefore free from all lestiaints upon alienation (li )
The piopeity so taken descends to his relations, not to the
hens of the adoptei (x) while be himself loses no rights of
inheritance in his natural family (y). Apait from an)
special custom, the descendants of an diatom son-in-law can-
nol cLiim n<ihts of collaleral inhciilaiKe to the estate of the
last holdei of the <*stale An diatom son-in-lau is no! lhei('-
fore an aclopltnl son in an\ sen:^e (

ip) (19,H ) 51 Mad, 27, bupra, Gadiyani Nurayudu v V enhaminn

(1912) 22 MLJ, 265, Sidda \ Subbamma 10 Mys., L J , J52, 57
My-' 11 ( K, 520, ukiiig of a ptison as illatom followed by lllaliJa‘^<
even aftti the death of the taker -'Cem-' b\ custom sufficient I'enhata-

chellum v Butt haninta (1911) 2 M W N., 193.

iq) JSidtun hribtnamnia \ Kamepali Venhutusiibbawa (1919)

46 lA, 168 42 Mad, 805, see also unreported lase m SA 4S of

1905

(r) Ifanumantarnma \ Kami Reddi (1881) 4 Mad, 272, C/unna
C)ba\\(i V ^ura Reddi (1898) 21 Mail, 226, Naiabirnha v \ eetab'idra
(1891) 17 Mad, 287

ib) (1931) 54 Mad, 27, 55 supra

(t) Chinna Obayya v Sina Reddi (1897) 21 Mad, 226, (1931)
54 Mad , 27, 56 supra

ill) Emi Soorainma v Yarabati V arahalu (1926) 101 IC, 828,
Malta Reddi \ Radmarnma (1894) 17 Mad, 48, Muthata\ Sankarappa
(1935) 67 ML f, 706

(v) Chenchamma v Subbayya (1886) 9 Mad. Ill, (1891) 17
Mad , 114 supra

Uv) Chella Papi v ( hella Koti (1872) 7 Mad H.C , 25
(r) Ramakristna v, Subbakka (1889) 12 Mad, 442
(y) Balarami v Pera (1885) 6 Mad, 267.

( 2 ) Muthala v Sankarappa Reddiar (1955) 67 MLJ, 706, A.I R
1935 Mad., 3 (2),

CHAPTER VI.

FAMILY RELATIONS.

Minority and Guardianship,

§ 229. Minority under Hindu law terminates at the age Period of
of sixteen. There is, however, a difference of opinion as
to whether this age is attained at the beginning, or at the*
end, of the sixteenth year. Sanskrit writers seem to take
the foimer view (a), and this was always held to be the law^
in Bengal (b). The latter limit is stated to be the rule in
Mithila and Benares, and was at one time followed in
Southern India and apparently in Bombay (c) . The only
expression of judicial opinion on the subject in Southern

India agrees with the Bengal view (d).

•

The Indian Majority A(‘l (IX of 1875) (e) lays down,
as a general rule for all persons domiciled in British India,
that in the case of every minor of whose person or propertv
a guardian has been, or shall be, appointed by any Court of
Justice, and of every minor under the jurisdiction of any Coint
of Wards, minority terminates at the completion of the
twenty-first year; in all other cases, at the completion of the
eighteenth year (/) .

(а) Daya Bhaga, III, 1, 17, n<'tc; Dat. Mima., IV, 47; Dig., I, 202;
Nar., I, 35-36, Kiilluka’s gloss on Mann, VIII, 27, Vyav. Dharp, I, 591,
Vyav. Chanel., II, 590, The foundation of the rule is the text of
Narada* “A child is comparable to an embryo upto his eighth year.
A youth who has not yet reached the age of sixteen is called Poyanda^
Afterwards he is no longer a minor and independent in case his parents
are dead” (I, 35-36). On the question whether minority terminates
at the end or at the beginning of the sixteenth year. Dr. Jolly says
that most, if not all, Indian writers take the latter view. Asahaya,
the commentator on Narada, was apparently of the same opinion
(S.BE., Vol. XXXIIT, p. 51).

(б) 1 W. MacN., 103, 2 W. MacN., 220, 288 (note) ; Cally Churn
V. Bhuggobutty 10 B.L.R , 231, 19 W.R , 110, Mothoor Mohiin v
Siirendro (1876) 1 Cal, 108 F B.

(c) W. MacN., up sup; 1 Stra. IlL, 72; 2 Sira. H L , 76, 77,
Lachman v Rupchand 5 S.D., 114 (136); Shivji v. Data (1875) 12
Bom. II.C , 281, 290; Hamesh Chandra Das v. Maharaj Birendra Kishore
(1924) 29 C.W.N., 287, 289; (under the Benaies school, he mu*^!
have completed his sixteenth year).

id) Sattiraju v. Venkataswami (1917) 40 Mad., 925, 931.

(e) The Act extends to the subjects of the Crown in the Indian
States also. See also the definition of 'minor' in S. 2 of the Indian
Succession Act (XXXIX of 1925).

(/) Khwahish v. Surju (1881) 3 All., 598, Reade v. Krishna (1886)
9 Mad., 391; Mungmram v. Gursohai (1890) 16 I.A., 195, 17 Cal., 347,

298

MINORITY AND GUARDIANSHIP.

[chap VI,

Where a guardian has once been appointed by a Couit of
Justice, minority will last till 21, whether the guardian so
appointed continues to act or not, or has or has not taken out
a certificate (g) . An appointment by the Court of a guardian
conditional on his furnishing security is not a valid appoint-
ment and the minor attains majority when he rompletes
eighteen (h) Where the Court of Wards has assumed
jurisdiction, the disability of minority only continues so long
as the Court of Wards retains charge of the minor’s piopertv
and no longer (j) The Act does not affect the capacity of
any person in respect of marriage, dower, divoice, or adop-
tion (j), but It affects his power to execute a valid will (/r‘
Where the fact of minority is itself in dispute, a certificate of
guardianship is not evidence of the fact (/), noi is a horoscope
cast by a deceased person admissible foi that pin pose (m),
though It lould doubtless be used to corroborate the testimony
of a living witness who had cast it.

230. Under the Guaidians and Wards Act (VI II of
1890), no guardian of the propeity of an infant can be appoint-
ed where the minor is a member of an undivided family governed
bv the Mitakshara law oi Aliyasaiitana or Maiuniakkaltayam
law, the reason being that the infant’s inteicst is not individual
property (n) The High Court has inheient jurisdiction to

(g) Rudra Piokash v Bholanath Mukherjev (1886) 12 Cal, 612
Cirish Chunder v Abdul Selam (1887) 14 ( al , 55, Gordhan Das \
Hanvalubh Das (1897) 21 Bom, 281, Sadho Lai v Muilidhar (1907)
29 All, 672 F.B , Jagon Ram v Maliadeo Prasad (1909) 36 Cal, 768
As to the duration of a guardianship ad hteai, see Jwala Dei v Pubhu
(1892) 14 All, 35, Shivrarn v Krishnabai (1907) 31 Bom, 80

(h) In re Venkatesaperiimal (1926) 49 Mad, 809 FB

(i) Birjmohun Lai v Rudra Ferkash (1890) 17 Cal, 941

(;) Arulananda Muthu v Ponmiswami AIR 1922 Mad, 1 12

M L.J , 129

(k) Hardwari v Gomi (1911) 33 All, 525, Bai Giilab \

Thakorelal (1912) 36 Bom, 622. Knshnamachariar v Krishnamachanar
(1915) 38 Mad, 166, In the goods of the t F C Miranda (1924)
28 C.WN., 527

(/) SatischuTider \ Mohendro Lai (1890) 17 (.al , 849, Gunjra
Kuar V Abhkh Pande (1896) 18 All, 478, Saidnnnissa v Ruqaiya
Bibi (1931) 53 All, 428, 435

(m) Krishnamachanar v Krishnamachanar (1915) 38 Alad , 166
Nirmalanahni v Kamalabala (1932) 36 CWN, 838

(n) Gharibullah v Kholak Singh (1903) 30 T A 165, 25 All , 107
416, Shamkuar v Mohananda (1892) 19 Cal., 301, Uanhar v Mathura
(1908) 35 Cal, 561, Kajikar v Maru Devi (1909) 32 Mad, 139
Bandhu Prasad v Dhiraji Kuar (1898) 20 All, 400, Jaganuath Prasad
V Chunnilal A I.R. 1933 All, 180, Rattan Chand v Ram Kishen
A.I R 1928 All, 447, Banamali v Arjun Sen AIR 1932 Cal, 730,
36 CWN, 769, Jambagathachi v Rajamannar (1920) 11 M L W 596,
Hiran Devi v. Chanan Shah AIR. 1937 Lah., 918

PARAS. 230 - 231 .] APPOINTMENT BY COURT.

299

appoint a guardian of the property of a minor who is a mem-
ber of a joint Hindu family even where the minor’s property
is an undivided share in the family property (o), unlike under
the Guardians and Wards Act. Of course the Court has power
under the Act to appoint a guardian in case the infant has
self-acquired or separate property (/>) or where the infant is
governed by the Dayabhaga law. When all the coparceners
of a Mitakshara joint family are minors, the Court can appoint
a guardian of the property of the minors, though in such a
case as soon as the eldest member of the family attains
majoiity, the guardianship is ipso facto determined as regards
dll the members {q) • A guardian of the person of a minor
member of an undivided Mitakshara family may however be
appointed by the Court (r).

§ 231. The Hindu law vests the guardianship of the Guardianship,
minor in the sovereign as patens patriae ) , Necessarily this
duty is delegated to the child’s relations. Of these, the father,
and next to him the mother, is his natural guardian; anv
other relative must derive his authority from the Courts ( 5 1

(o) In te Mahadeo Krishna Rupji A.I.R. 1937 Bom, 98, In re
Dattatraya (1932) 56 Bom, 519, Narsi Tokersey v. Sachindranath
(1930) 54 Bom, 75, In re Jairam Luxmon (1892) 16 Bom., 634, In
re Jagannath Ramji (1895) 19 Bom, 96, In re Munilal Hargovan
(1901) 25 Bom, 353, In re Bijay Kumar Singh (1932) 59 Cal., 570,
In re Han Narain Das (1923) 50 Cal., 141, In the matter of Govind
Prasad (1928) 50 All, 709 In Raja of V izianagaram v. The Secretary
of State for India 11937] Mad , 383, ilie Madras High Court held
that under cl. 17 of the Letters Patent, the High Court has jurisdiction
in regard to Indian minors in the mofussil as well and that the
jurisdiction was saved by S. 3 of the Guardians and Wards Act (VIII
of 1890).

ip) Sadhu Ram v. Pirthi Singh & Co, A I.R. 1936 Lah., 220,
Bnnamali Patra v Arjun Sen A.I.R. 1932 Cal., 730.

iq) Bindaji v Mathurahai (1906 ) 30 Bom, 1.52, Ramchandra v
Krishnarao (1908) 32 Bom., 259; Shamnath Sahi v. Lalji Chaube
(1913) 35 All., 150; Jagannath Prasad v. Chunnilal A.I.R. 1933 All.,
180, Chandrapal v Sarabjit AIR. 1935 Oudh, 334, 16 Luck., 67.

(r) Vinipahshappa v. Nilgangava (1895) 19 Bom., 309 F.B .

Goiira V. Giijadhur (1880) 5 Cal., 219, Jhabbu Singh v. Ganga Bishan
(1895) 17 All, 529, 531; Jambagathachi v. Rajamannar (1920) 11
MLW, 596.

(ri) Manu, VIII, 27, IX, 146, 190, 191; Gaut., X, 48; Vishnu, III,
65, Vas, XVI, 7, F MacN., 25; 1 Stra. H.L., 71; 2 Stra. H.L., 72*75

( 5 ) The Guardians and Wards Act S. 19(6). This is cited in
( handiilal v Miikhandi AIR. 1925 Lah, 503 » Thayammal v. Kuppanna
Koiindan (1915) 38 Mad., 1125; Lachmi Narain v. Balaram Sahai

(1917) 2 Pat LJ, 190, Kaulesra v. Jorai (1906) 28 AIL, 233; Mt

Bhihuo Koer v Mt Chamela Koer (1898) 2 C.W.N., 191; Purushottama
V. Brundavana A I.R 1931 Mad., 597. A father is entitled to the

custody of his child in preference to the mother. In re Prankrishna

Surma (1882) 8 Cal., 969.

300

MINORITY AND GUARDIANSHIP.

[chap, VI,

Order of
guardianship

Parents.

In default of the mother, or if she is unfit to exercise the
trust, his nearest male kinsmen should be appointed, the
paternal kindred having the preference over the maternal (t).
The Court has no power to appoint or declare any one as a
guardian of the person of a minor whose father is living and
IS not, in its opinion, unfit to be the guardian of his person (w) .
Nor can a father be appointed guardian of his minor child
though he can obtain an order directing the return of the
( hild to his custody (v). A Hindu father can by will appoint
a guardian of the person of his child, even to the exclusion
of the mother, its natuial guaidian (iv) , a Hindu mother
cannot Of couise, in an undivided famil\, governed by

Milakshara law, the management of the whole property,
im hiding the minoi’s share, would be vested not in the mother,
but in the eldest male It would be otherwise where the
family was divided (y) or where the minoi has sepaiate
property But this would not interfere withjier right to the
custodv of the child itself (-3) A Hindu father or othei

(/) This IS cited In re Gulbai and Lilhai (1908) 32 Bom, 50, 53,
Cungama v ( hendrappa Mad Dec of 1859, 100, 1 W MdcN„ 103,
Mooddoohrishna v Tandaiaroy Mad Dec of 1852, 105, Muhtaboo \
Gunci>h SD of 1854, 320 Under Mithila law, however, it ha'^ hetn
held that the mothei is entitled to he guardian of the person of her
minor son in piefeience to the fathei Jussoda v Lallah Nettya (1880)
5 Cal, 43 As to the claim of the stepmother, see Luhniec v Vmur-
f blind 2 Bor, 14-4 11631, Ram Biinsee v ^oobh Koonwaree 7 WR.
321, Baee Shea v Ruttonjee Morns, Pt 1, 103 As to the Punjab, see
Piinjah ( ustomary Law, II, 133.

(//) The Guardians and Wards Act, S 19(b), Besant v Nara-
yaninh (1915) 41 I A , 314, 38 Mad. 807, Ma Ya Shin v Nehal Singh
A I R 1937 Rang , 360.

(r) Lakshina Reddi v Alla Vira Reddi AIR 1925 Mad, 1085

(w) Soohah Doorgah Lai Jha v Raja Neelamund Singh 1 WR,
74, Alagappa Ayyangar v Mangathai Ammangar (1917) 40 Mad, 672,
Dr Albredit v. Bathee Jellamma (1912) 22 MLJ., 247, Konthalath’
animal v Thangasivamy (1923 ) 46 Mad, 873, 881, Deba Nand v.
Anandmani (1921) 43 All, 213, dmirthavalli Animal v Sironmani
Animal (1938) 1 M.L J , 422

( 1 ) Where she has professed to do so, the actual appointment
must he ma<le under Act Vtll of 1890, ss 7, 8, V enkayya v Venkata
(1898) 21 Mad, 401, see Pathan Alikhan v Bai Panibai (1895) 19
Bom 832 Where the father has appointed a guardian by will, no
other guardian can be appointed under Act VIII of 1890, s 7 (3),
until it IS established that the will is invalid Sayad Shahii v. Hapija
(1893) 17 Bom, 560, see (1938) 1 M L J , 422 supra

iy) Alinielammal v Arunachellani (1866) 3 Mad. H C , 69,
Bossonauth v Doorgapersad 2 M. Dig, 49, Gonrahkoeri v Gujadhiir
(1880) 5 Cal, 219 But she can sue on his behalf if the proper

guardian refuses to do so, Mokrund Deb v Ranee Bissessnree S D. of

1853, 159.

(z) Kooldeep v Bajbunsee S D. of 1847, 557. After the Hindu

Women’s Rights to Property Act, the position of a woman who

succeeds to her husband's coparcenary interest will not be different,

PARA. 231.]

CUSTODY OF MINOR WlFlS.

301

senior coparcener of a Mitakshara family has no power to
appoint, by will or otherwise, testamentary guardians of the
coparcenary propeities of his minor sons or brothers or
nephews as the case may be (a). But a Hindu authorising
his widow to adopt can, at the same time, appoint a guardian
by will for the boy to be adopted, even though the property
is ancestral (6).

The husband, if of full age, is the guardian of his wife, llubband.
and the fact that she has not attained puberty is immaterial.

Under section 19 of the Guardians and Wards Act, the
husband’s right to lie guardian of the person of his minor
wife, unless he is unfit, cannot be overridden by the Court,
and under section 21 of the Act, a minoi husband can
apparentl) act as the guardian of his own wife or child (c).

In Atuniuga v. Virataghava (rf), however, it was held that
by the general custom among Hindus in the province of
Madras, the husband was not entitled to the actual custody of
the wife, till she attains matuiity, unless such custody should
be necessary in the interest of the minor wife. But the Act
does not except custom. The husband’s relations, if any exist
within the degree of sapinda relationship, are the guaidians
of a minor widow, in preference to her father and his
relations (e). But if it is to the interest or welfare of the
minor to do so, the Court may appoint her father in preler-
ence to the sapindas of her husband (/) .

On re-marriage, a mother loses her piefeiential right to Kumarridgc
the guardianship of the childien of her fust marriage (g) o£ mother,
except where such re-marriage is permitted by custom (/z) . But

(а) Chidanihaiam PiUai v Rangaswann (1918) 41 Mad, 561 F.B.,

Ihin Lai V Rat Mam (1905) 29 Bom,. 151, Bnjhhuhandossy.Ghashirani
(1935) 59 Bom., 316 FB, overruling Mahableshwar v. Ranuhandra
(1914) 38 Bom., 84, bee albo Venkatraman v. Janardhan (1928) 52
Bom., 16, Ambalavana v Gown A.l.R. 1936 Mad., 871.

(б) Jagannadha Rao v. Ramayamma (1921) 44 Mad., 189.

(c) Audiappa v Nallendram (1916) 39 Mad, 473, Lakshrnidev-
amnia v Dhanalakshmamma 42 Mys H C R , 464

id) (1901) 24 Mad, 255, Aka/nma v. Puttaiya 3 Mys., 119,
Lakslunanachan v. Biibbanuna 12 Mys. L.J , 180, 39 Mys. ll.(]., 198

(e) khiidiram Mookerjee v Bonwan (1889) 16 Cal, .584, Chuina
4/agnmpcrumal v Vinayagathammal (1928) 55 M.L J , 861; Mt. Ganga
Dcvl V. Narshing Das A.l.R. 1935 Lah., 25.

(y) Toia Rani v. Rani (1911) 33 All., 222, Surjyamoni v. Kali Kanta
(1900) 28 Cal., 37, Navnitlal v. Purshotani (1926) 50 Bom., 268.

(g) See Ganga Pershad Sahu v. Jhalo (1911) 38 Cal., 862.

{h) Mt, Indi V, Ghania (1920) 1 Lah., 146; Mt. Ram Labhai v,

Durgadas (1934) 15 Lah., 28; compare Fakirappa v. Savitrewa (1921)

23 Bom.L.R., 482 overruling Putlabai v, Mahadu (1908) 33 Bom., 107
and following Panchappa v. Sanganbasawa (1899) 24 Bom., 89; but
bee Raoji Thakaram v. Hemraj Sadaram A.l.R. 1923 Bom., 213; sec
Hindu Widows* Remarriage Act (XV of 1856) S. 3.

302

MINORITY AND GUARDIANSHIP.

[chap. VI,

Guardianship
of adopted
son.

Lots of caste

Right of
guardian to
custody of
minor

there is nothing either in Hindu or in statutory law to make it
obligatory on a Court to remove her from that position.
The Court has an entire discretion in the matter: it acts solely
with a view to the best interests of the children, it must con-
sider the claim of the mother, but must treat it as a claim
made by a stranger If it thinks it is in the best interests
of the children to appoint her, it is free to do so.

A father loses his right by giving his son in adoption [ij
and ordinarily the adoptive fathei or m his absence the
adoptive mother is the guardian of the adopted son.

After the Caste Disabilities Removal Act (XXI of 1850),
the natural guardian does not forfeit his right of guardianship
by loss of caste (/) . Of course, any guardian, however
appointed, may be removed for pioper cause (A). Little is
to be found on the subject of guardianship in works on Hindu
law The matter is principally regulated by statute (/).

§ 232. The guardian has a prima facie light to the
possession of the infant, a right which aiises out of his
obligations in lespect of the child (m ) , he cannot therefoie
be deprived of it, even by the desire of the minor himself,
except upon sufficient giounds The father is the natural
guardian of his children, but this guardianship is in the
nature of a sacred trust, and he cannot therefore during his
lifetime substitute another peison to be guaidian m his place.
He may entrust the custody and education of his children to
another, but the authority he thus confers is essentially a
revocable authority, and, if the welfare of his children require

(i) Lakshmibai v Shridar (1879) 3 Bom, 1; Sree Narain Muter
V. Sreemutty Kishen Soondory (1873) Supp Vol I A 149, 163,

Monomohini Dasi v. Han Prasad Bose (1925) 4 Pat, 109, but see
Rathnammal v. Govindaswami A.I.R. 1934 Mad , 44

(y) Kanahi v. Biddya (1879) 1 All., 549, Kaulesra v Jorai (1906)
28 All., 233.

(A) Alimelammal v. Arunachellam (1866) 3 Mad. H.C , 69,

Gourmonee v. Bamasoonderee S D of 1860, I, 532 , Skinner v Ordc
(1871) 14 MI.A, 309.

(/) For the texts of Hindu law relating to the protection of estate
of infants, see Ganga Pershad v Jhalo (1911) 38 Cal, p. 867. See

the Guardians and Wards Act (VIII of 1890) and the various Court

of Wards Acts, Madras Court of Wards Act I of 1902, Bombay Court
of Wards Act I of 1905, Bengal Court of Wards Acts III of 1881
and I of 1906; U P Act IV of 1912; The Punjab Act II of 1903
Where the law requires the appointment of a guardian under any
statute, no greater powers can be exercised by a guardian de facto
than would have been vested in him by statute, if he had been duly
appointed, Abhassi Begam v. Rajroop Koonwar (1879) 4 Cal, 33

(m) See per Vaughan Williams and Stirling, L , JJ., Humphreys
V. Polak [19011 2 K.B., 385.

PARAS. 232-233.] RIGHT TO CUSTODY.

303

it, he can, notwithstanding any contract to the contrary, take
such custody and education once more into his own hands (n) .
If however his authority has been acted upon in such a way as
to create associations or give rise to expectations on the part
of the infants which it would be undesirable in their interests
to disturb or disappoint, the Court will interfere to prevent
its revocation (o). No Civil Court in the mofussil has
jurisdiction to entertain a suit by a father for the custody
of his child after the Guardians and Wards Act; but he can
obtain an order on petition for his return from a competent
Court, under section 25 of the Act (/>). The Bombay High
Court has however held that such a suit lies (g).

§ 233. The fact that a father has changed his religion,
whether the change be one to Christianity or from
Christianity, is of itself no reason for depriving him
of the custody of his children (r). The case of a
change of leligion by the mother would, however, be
different. The leligion of the father settles the law which
governs himself, his family, and his property. “A child in
India, under ordinary circumstances, must be presumed to
have his father’s religion, and his corresponding civil and
social status^’ (5). Therefore, where a change of religion on
the part of the mother would probably result in her seeking
to change the religion and therefore the legal status of the
infant, the Court would remove her from her position as

(n) Besant v Narayaniah (1915) 41 I.A., 314, 38 Mad., 807;
Sukdeo V. Ramchunder (1924) 46 All, 706; The Queen v. Barnardo
23 Q.B.D., 305, Humphreys v. Polak, ub, sup.

(o) Besant v. Narayaniah (1915) 41 LA , 314, 38 Mad., 807 citing
Lyons v Blenkin (1821) Jac., 245. See also Pollard v. Rouse (1910)
33 Mad., 288.

ip) Sathi V. Ramandi Pandaram (1919) 42 Mad., 647 F.B.; Sham-
lal V. Bindo (1904) 26 All, 594, Lakshma Reddi v. Alla Vira Reddi
A.I.R. 1925 Mad, 1085; Utma Kuar v. Bhagwanta Kuar (1915) 37
All., 515; Shadeo v. Mahraji (1931) 9 Rang., 569.

{q) Acharatlal v Chimanlal (1916) 40 Bom., 600, Sharif a v
Munekhan (1901) 25 Boin., 574, see In the matter of Kashi Chunder
Sen (1882) 8 Cal, 266.

(r) R. V. Bezonji Perry 0. C, 91; Muchoo v. Arzoon 5 W.R., 235,
Sharnsmgh v. Santabai (1901) 25 Bom., 551. A Hindu father who
becomes a Christian is prima facie entitled to say in what religion his
infant child should be brought up; but his wishes are not conclusive
and the Court may, where it would be injurious to the minor to give
effect to the father’s wishes, prevent him from altering the son’s
religion Rev. Dr Albrecht v Bathee Jellamma (1912) 22 M.L.J., 247,
bill see Dasappa v. Chikama 17 Mys., 324.

(s) Skinner v. Orde (1871) 14 M.I.A., 309, Mokoond Lal v.
Nobodip Chunder (1898) 25 Cal., 881; In the matter of Joshy Assam
(1896) 23 Cal., 2%; In re Saithri (1892) 16 Bom., 307; compare
Kanahi v. Biddya (1878) 1 All., 649 and Kaulesra v. Jorai (1906)
28 All., 233.

Change of
religion by
parents

301

MINORITY AND GUARDIANSHIP.

[chap. VI,

(Jiaiigc of
religion hy
minor.

Engli'-h

decision*?

guardian (/). The question as to the extent and limitation
of a father’s right to determine in what religion his child shall
be brought up has been discussed in many English cases (u^.
How fai those decisions would be applied in India, where
religion is not meiely a matter of belief but is intimately
connected with questions of caste and status, it is not easy to
say. No doubt the equitable principle would be adhered to,
that the paramount consideration is the welfare of the child,
though its application to particular cases might prove
extremely difficult

S 231. The (ase of a ihilcl volunlaiily leaving its paients
has fieijuently oicurred where theie has been a conveision
to Christianity (v). In Reade v. Krishna (ic), where a Brah-
min boy sixteen years of age, having lelt his lalhei’s house
went to and resided in the house of a missionarv where he
embraced Christianity, the Madias High Court held, on a
review of the pievious decisions that the falhei was entitled
to have the custody ol his son. It may also be obseived that
it IS a ciiininal offence under the Indian Penal Code to entice
from the keeping of the lawful guaidian a male minor undei
the age of fourteen, or a female rnmoi under the age of
sixteen (x ) .

Moie lecentlv the Indian Couils following the rules of
ecjuity as administcied in England, have lefused to give effect
to any inflexible application of paternal lights over minoi
children The English piactice, as deduced from lecent cases,
is laid down as follows in beton on Decrees (y). “In equity

(/) /)urjapa(fa Karniahar v Af/bs Bailcan (19ir)) 20 (.al WN,

608, Vceraswanu v Ratnamma A IK 1928 Mad, 1087, Canesh Lata v
Hataii Rat A l.K 1937 Mad, 976, sec Abdul Rahman v. Jagannalh
A. I R 1930 All , 86 (imioval rofusrd as loo lalo)

(a) Sf( eg. The Qnein v Barnardo 23 QBD, 303, Ilumphreys

\ PidaL (1901) 2 KB, 385

(r) K V Nesbitt Perry 0. C., 103, 109, kulloor Narrainswamy's
ta^'C (1858) unreported. He Himnath Rose (1863) 1 Hyde, 111.

(/c) (1886) 9 Mad, 391. No agreement by which a jiareni siii-

renders to another the right to tlio custody of the child is binding,

and in this respect the mother of an illegitimate child iS in the same
position as the father of one that is legitimate, Reg. v. Barnardo
(1891) A.C, 388.

(:t) Sections 361, 363. The consent, or wish, of the minor is quite
immaterial, Reg v Bhungee 2 WR, Cr., 5, Reg. v. Shooku 7 W.R ,
Cr., 36.

(y) II, 884, 17 Hals, 2nd edn , p. 666; Reg v Gyngall (1893)
2 Q.B., 232; Re Newton (1896) 1 Ch., 710, Re A and B (1897) 1 Ch..
786; Re Mathieson (1918) 87 L.J. (ch.) 445, G.A.

I>ARAS. 234-236.] MINOR^S INCAPACITY TO CONTRACt. 305

a discretionary power has been exercised to control the
fathers’ or guardians’ legal rights of custody, where their
capricious exercise would materially interfere with the
happiness and welfare of the child, or where such rights have
been forfeited by misconduct or acquiescence, or where the
father has so conducted himself, or is placed in such a position
as to render it not merely better for the children, but essential
to their welfare in some very serious and important respect
that his rights should be superseded or interfered with”

§ 235. The mother is the natural guardian of an illegiti- Illegitimate
mate child (a). But the putative father on whom the obliga-
tion to maintain falls has prima jade the preferential right
to the custody (6). Where the mother has allowed the child
to be separated from her and brought up by the father, or by
persons appointed by him, the Court will not allow her to
enforce her rights, especially if the result would be dis-
advantageous to the child by depriving it of the advantages of
a higher mode of life and education (c). Her own continued
immorality would of itself be a sufficient reason against hand-
ing over to her a child which was otherwise properly provided
for (d) .

§ 236. The contractual capacity of a Hindu minor is Effect of
governed by the provisions of the Indian Contract Act (IX of contracts.
1872). A Hindu minor’s agreements are absolutely void and
not merely voidable; and even if he is supplied with necessaries
suited to his condition in life, no remedy could be obtained
against himself personally, though under s. 68 the person
who supplied the articles would be entitled to be reimbursed

(z) Re Saithri (1892) 16 Bom., 307, Re Joshy Asbani (1896)
23 290; Moofcoond Lai v. Nobodip Chunder (1898) 25 Cal, 881;

iaatyanarayana v. IS arabayamma A.I.R. 1924 Mad., 45, Sukhdeo v. Ram
Chandra (1924) 46 All., 706, see Audiappa v. Nallendrani (1916) 39
Mad, 473, dissenting from Bindo v. Shamlal (1907) 29 AIL, 210,
Atchayya v. Kosaraju Narahari A.I.R,, 1929 Mad., 81, doubting Rev
Dr, Albrecht v. Bathee Jellamma (1912) 22 M.L.J , 247.

(a) Venkamma v Savitramma (1889) 12 Mad., 67, In re Saithn
(1892) 16 Bom., 307

(b) Premkuar v. Banai si Das (1934) 15 Lah., 630; Ghana Kanta
V. Gerali (1905) 32 Cal., 479; Kooverji Devji v. Motibai A.I.R 1936
Sind, 63.

(c) Lai Das v. Nekunjo (1879) 4 Cal., 374 Kariyadan Pokkar v
Kayat Beeran (1896) 19 Mad., 461

id) Venkamma v. Savitramma (1889) 12 Mad., 67.
22

306

MINORITY AND GUARDIANSHIP.

[chap. VI.

from his property (e). Being void, the contract of a minor
cannot be ratified by him after he comes of age: and it makes
no difference that a further advance or other fresh considera-
tion IS superadded to the original contract if). Where that
part of the contract into which he entered after attaining age
IS severable from the rest, it might be separately enforced

It IS not within the competence of a manager of a minor’s
estate or of a guardian of a minor to bind the minor or the
minor’s estate by a contract for the purchase of immovable
property, and as the minor is not bound by the agiecmenl
there is no mutuality and the minor cannot obtain specifn*
performance of the contiact (g). On the other hand, theic
IS nothing in law to pi event a minor from being a transferee
of property; and if a deed of sale has been executed in favour
of a minor and no part of the consideration remains to be
executed by him, he can sue foi possession of the propeity {h)
So too a mortgage executed in fa\oui of a minoi where the
whole consideration has been paid (i)

(e) Mohori Bibee v Dhunnodas (1903) 30 I A , 114, 30 Cal, 539,
Hahoan Singh v, R Clancy (1912) 39 I A., 109, 34 All, 296 As to
whdt arc necessaries see, Jagon Ram v Mahadeo (1909) 36 Cal, 768,
Mahmud Ah v. Chinhi Shah (1930^ 52 All, 381, and the reasonable
expenses of a ‘listers nidniage, aged 13, are chargeable on the famil>
property in the hands of her minoi biolher, handan v Ajudhia (1910)
32 All, 325, Sheo Govind v Ram Adhin AIR. 1933 Ondh, 31
Pathakhali v Ram Dem Ram (1917) 2 PLJ, 627, Sham Churan Mul

V Chowdhr\ Debia (1894) 21 Cal, 872 (co'^lb incuired in defending
(iiminal pioceedings against minor) , Sundara Raja v Pattanathusarm
(1894) 17 Mad, 306 (vakils’ fees— not a necessity), Siichit Chaudhun

V Harnandan Singh (1933) 12 Pat , 112

(/) Indran Rainaswanu v Anthappa (1906) 16 MLJ, 422,
Arumugam Chetty v Duraisingha (1914) 37 Mad, 38, Ihndcshri v
Chandika Prasad (1927) 49 All., 137 dissenting from Kundan Bibi \
Srt Aditya Deb (1906) 11 C W N., 135. Govind Ram v Piranditta
(1935) 16 Lah, 546 F B.

(/?) iMir Sarwarjan v hal.hiruddin (1912) 39 I A, 1, 39 Cat, 232,
Malta V Muhammad Sharif (1927) 8 Lah., 212; V enkatachalam v
Sethuram Rao (1933) 56 Mail, 433 FB, Suchit Chaudhun v Har^
nandan (1933) 12 Pat, 112, Ramaknshna v Kasivasi Chidambara
(1928) 54 MLJ, 412, Kishen Lai v Lachnu Chand A l.R. 1937 All
456, see Sohan Lai v. Atal Nath (1934) 56 All, 142 (where a minor
was held bound on special facts).

{h) Ulfat Rai v Gauri Shankar (1911) 33 All, 657; Munni Kunwar
V. Madan Gopal (1916) 38 All, 62, Narain Das v Musammat Dania,
lb., 154, Mania Kone v. Perunial (1914) 37 Mad., 390.

ii) Raghavachan v Srinivasa Raghavachari (1917) 40 Mad, 308
FB, overruling Navakoti Narayana v Logalinga (1910) 33 Mad, 362,
Thakor Das v Mt Putli (1924) 5 Lah, 317, Zafar Ahsan v Zubaida
Khatun A l.R. 1929 All, 604, Madhab Koeri v. Baikunta (1919) 4
P.L.J, 682; Han Mohan v. Mohini Mohan (1917) 22 C W.N., 130.

Para. ]

POWERS OF GUARDIANS.

307

§ 237. The power of the manager for an infant heir to
charge an estate not his own, is under the Hindu law, a limited
and qualified power. It can only be exercised rightly in a case
of need, or for the benefit of the estate. But where, in the
particular instance, the chaige is one that a prudent owner
would make in ordei to benefit the estate, the bona fide lender
is not affected by the precedent mismanagement of the estate.
The actual pressure on the estate, the danger to be averted
or the benefit to be conferred upon it in the particular instance
is the thing to be regarded. Under the things to be included
m the expression ‘benefit to the estate’ will come the
pieservation of the estate, defence against hostile litigation,
the protection of it from injury or deterioration by inundation
and such like things (j). Where a lender, dealing with a
guardian, inquires and acts honestly, the real existence of an
alleged and reasonably credited necessity is not a condition
precedent to fche validity of his charge, rendering him
liable to see to the application of the money (k). A guardian
is not entitled to sell the minor’s property for increasing the
minor’s income (/) or to involve the minor’s estate in debts for
the puipose of purchasing lands to be added to his estate. In
the latter case, however, the creditor will be entitled to a
decree against the lands actually purchased with the money
advanced by him ( m ) . It would be within the powers of a
guardian to sell land which could not be conveniently culti-
vated with other property of the minor and invest the proceeds
in buying lands which could be so conveniently cultivated
or to sell lands in ordei to raise money to secure irrigation
or permanent improvement of other lands of the minor or to
make a beneficial exchange (/i). And where the act is done
by a person who is not his guardian, but who is the manager
of the estate in which he has an interest, he will equally be

(/) Hunooman Persaud v. Musbummat Babooee (1856) 6 M.I.A.,
393, 423, Palamappa Chetty v. Devabikamony (1917) 44 LA., 147, 40
Mdcl., 709, Mohanund Mondiil v. Nafur (1899) 26 Cal., 820, Nathu
V. Balwant Rao (1903) 27 Bom., 390, Hemraj v. Nathu (1935) 59
Bom, 525 F.B , Krishna Chandra v. Rattan Ram (1915) 20 C.W.N.,
645; Punnayyah v. Viranna (1922) 45 Mad., 425, Nrishinga Charan
V Ashiitosh Deo (1938) 19 Pat. L.T., 35. See §§361, 365.

(A:) Hunooman Persaud v. Musbumat Babooee (1856) 6 M.I.A.,
393, Sri Krishan Das v. Nathu Ram (1927) 54 I. A., 79, 49 All, 149,
see Ram Sunder Lai v. Lachhmi Narain (1929) 51 All., ^0 A.I.R. 1929
P.C., 143; Rajaballabh v. Bishun Prasad A.I.R. 1935 Pat., 74; Imperial
Bank of India v. Veerappan A.I.R. 1934 Mad., 595, 67 M.L.J., 573,
Ponnari Rao v. Lakshmi Narasamma 1938 M.W.N., 67,

(/) Hemraj v. Nathu (1935) 59 Bom., 525 F.B.

(m) Burrayya v. Ramayya (1927) 47 Mad., 449.

(ri) Hemraj v. Nathu (1935) 59 Bom., 525, 544 F.B.

Power of
guardian to
bind infant.

308

Guardian’s
power to
acknowledge

MINORITY AND GUARDIANSHIP. [ CHAP. VI,

bound, if m the circumstanceb the step taken was necessary,
proper, or prudent (o) The person who so deals with a
guaidian is bound to inquire into the propriety of his act (p).

There were conflicting decisions on the question whether a
guardian of a minoi could keep alive a debt by acknowledg
nient of oi by payment towards the interest or the
principal of the debt Such acknowledgments and payments
aie almost always made to aveit an impending suit, and
guardians of minors and managers ot their estates are now
declared to be agents duly authorised in that behalf b\ s 21
of the Indian Limitation Act (IX of 1908).

In TenunakkaL v. Subbamnial (cy), it was said that all

(o) Hanoornan Fersaud v. Alt Babooee (1856) 6 M.I A., 393,
Mohanund MonduL v Najur Mondiil (1903) 26 Cal, 820, Balaji

Narayen v I^ana (1903) 27 Bom. 287 So iield also in a case where
the member of a joint family was a lunatic, and the manager had no
ceriificdlt under Act XXXV of 1858, Karti Chunder v Bibheshwar
Gostvami (1898) 25 Cal, 585 FB As to the acts of a de facto
guardian, see Majidan v. Rau Narain (1904) 26 All, 22. As to parti
tion of family property when one of the members is a minor, see
Bhagwati v Bhagivati (1913) 35 All, 126

ip) Dalibai v. Gopebai (1902) 26 Bom, 433, Anant Ram v.
Collector of Etah (1918) 40 All, 171 PC bee as to cariying out,
after the removal of a personal disability, a contract which was agieed
upon while the disability lasted, Gregson v. Aditya Deb (1890) 16 I A,
221, 17 Cal, 223

(q) (1861) 2 Mad H.C , 47, Manislianhar v Bai Mull (1888) 12
Bom, 686, ISathuram v Slioma Chhagan (1890) 14 Bom, 562, Soonder
Narain v Bennud Ram (1879) 4 Cal, 76, Ro&liaii Singh v Har
Kishan (1881) 3 All, 535, Sihher Chun v Dulputty (1880) 5 Cal
363, Nirvanaya v. Nirvanaya (1885) 9 Bom, 365. As to contracts
requiring statutory sanction, sec Debi Diitt v Subodra (1877) 2 Cal,
283, Manji Ram v Tara Singh (1881) 3 All, 852, Harendra Narain
V. Moran (1888) 15 Cal, 40, Bhupendro Narayan v. Neniye (hand
(1888) 15 Cal, 627 As to mortgages, see Doorga Fernand v kesho
(1882) 9 I A, 27, 8 (’al , 656, Rai Ballirishna v Mt Mamma Bibi
(1883) 9 I.A., 182, 5 All, 142, Dunput Singh v Shoobudra (1882)
8 Cal, 620, Girraj BaLi>h v Kasi Hamid (1887) 9 All, 340, as to
dealings with the propert> of a minor by a guardian without sanction
of Court, Act Vlll of 1890, S. 29, Sinaya v Muniswami (1899) 22
Mad, 289, Ganga Frasad v Mahram Bibi (1884) 12 I A , 47, 11 Cal,
379, Lala Hurro v Basaruth (1898) 25 Cal, 909, Dattaram v. Gunga-
ram (1899) 23 Bom., 287, Tejpal v Ganga (1903) 25 All, 59, Gharib
IJllah V. Khalak (1903) 30 I.A , 165, 25 All, 407, Gobardhan v Shea
Narayan (1929) 8 Pat , 226, as to the power of a guardian when
carrying on an ancestral trading establishment, Rampertab v Foolibai
(1896) 20 Bom., 767, p 777, Raghunathji v The Bank of Bombay
(1911) 34 Bom, 72, Sanka Krishna v The Bank of Burma (1912) 35
Mad, 692, Documents executed by a Hindu widow who described
herself as “mother of A, a minor, ' were held, in the absence of evidence
to the contrary, to be executed by her in her capacity as guardian of
the infant, Watson v Sham Lai Muter (1888) 14 I. A., 178, 15 Cal, 8
As to the power of the committee of a lunatic, see Abilakh Bhagiit
V Bhekhi Mahto (1895) 22 Cal , 864, Anpurnabi v Durgapa (1896)
20 Bom , 150. As to the guardian's power to refer to arbitration, see
Punuswami v. Veeramuth (1925) 3 Rang., 452.

p\RA. 237.J

POWERS OF GUARDIANS.

309

acts ol a guardian of a Hindu infant which arc
such as the infant might, if of age. reasonably and
prudently do for himself, must be upheld when
done for him by his guardian. This was explained by
West, J. in Dharmaji v. Gurrao Shiinivas (r) as meaning that
the transaction into which guardians enter on behalf of their
wards must secure to the latter some demonstrable advantage
Ol avert some obvious mischief in older to obtain recognition
of the Courts. Beaumont, C.J. criticising the view of the
Allahabad High Court holds that the test of what a
piudent owner would do in dealing with his own estate goes
too fai ( 5 ). The rule laid down in s. 27 of the Guardians
and Wards Act (VIII of 1890) that a guardian may do all
acts which are reasonable and proper for the realisation,
protection and benefit of the propeity and is bound to deal
therewith as carefully as a man of ordinary prudence would
deal with it, if it were his own, would cover all acts of
the guardian on behalf of the minor other than
alienations of the infant’s property, as to which, the test
of necessity or demonstrable benefit as explained by Lord
Atkinson in Palaniappa Chelty s case must apply.

Contracts made by a guardian on behalf of a minor will
bind him though his name is not mentioned and will also
enuie to his benefit. Of course, such contracts must be within
the guardian’s powers and such as to bind the infants (u)
Accordingly, a minor can call upon an agent appointed by his
guardian to account to him in respect of properties received
by him and not accounted for to the guardian (v) .

A de facto guardian of an infant’s estate has, in case ol
necessity or benefit to the minor, power to sell or mortgage

(r) (1873) 10 Bom. H.C., 311

(s) Heniraj v. Nathu (1935) 59 Bom., 525, 543 F B. dissenting
from Jagat Narain v Mathura Das (1928 ) 50 All, 969 F.B

(^) Palaniappa Chetty v. Devasikamonr (1917) 44 I.A., 147, 40
Mad., 709.

{u) Ranmal Singji v. Vadilal (1896) 20 Bom., 61, Sundararaja v.
Pattanathuswami (1894) 17 Mad., 306; Duraiswami v. Muthial (1908)
31 Mad., 458; Bhawal Sahu v. Baijnath (1908) 35 Cal., 320, Watson
& Co, V. Shamlal (1887) 14 LA , 178, 15 Cal., 8; see Murari v T ay ana
(1896 ) 20 Bom., 286, 288; Balwant Singh v. R, Clancy (1912) 39
I.A., 109, 34 All., 296 In a case before the Madras High Court, it
was held that a minor might bind himself by a contract of apprentice-
ship, if it is for his benefit, but such a contract could not be specifically
enforced against him either directly or indirectly by restraining him
from taking service under others or by restraining others from employ-
ing him. Pollard v. Rouse (1910) 33 Mad, 288.

(v) Suyamprakasam v. Murugesa Pillm (1924) 47 Mad., 774 F,B.

310

MINORITY AND GUARDIANSHIP.

[chap. VI ,

his properly (w). Conversely, a de facto guardian or manager
who takes possession of a minor’s estate will be bound to
account to him for his management as it is open to the ininoi
on attaining majority to elect to sue him either for damages
or foi an account ix). But one who has no authority under
the personal law applicable to the minors to enter into a
contract or to make a compromise or family settlement on
their behalf cannot bind them by any such transaction (:rM.

Cannot bind

infant

personally

§ 238. In all cases the power of the guardian or manager
is limited to the disposal of the estate with which he is
entrusted He cannot bind the minor by any purely peisonal
covenant and a minor cannot be bound by contiacts entered
into by the guardian which do not purport to charge the
estate (>). When it is said that a minor is not personally
liable, it means not only exemption from liability to arrest
but also that a decree cannot be passed against his estate (z).
There is one clear exception engrafted on this rule: where the
contract is for necessaries supplied to or on behalf of the
minor, a decree can be passed against the general assets of the
minor (a). The Madras High Couit has held that w'here the
liability IS imposed by the personal law of the minor, a decree
(an be passed against the pioperties of the minor on a guar-

{w) Hunooman Persaud v. Mussummat Babooee (1856) 6 M I.A ,
393, 412, 413, Mohanund v Nafur (1899) 26 Cal, 820, As to who
IS a de facto guardian, see Seetharamanna v. Appiah (1926) 49 Mad.,
768, Chinna Alagumperiimal v V may agathammal (1928) 55 MLJ
861, Tulsidas v Vaghela Raisinghji (1933) 57 Bom, 40 F B , ovenuling
Limbaji v. Rain (1925) 49 Bom., 576, Kundan Lai v. Bern Prasad
(1932) 13 Lah , 399, Piare Lai v. Lajjia Ram (1936) 17 Lah., 78,
Ram Nath v. Sant Ram AIR. 1935 Lah, 820, but see Narayanan v
Ravunni (1924) 47 M L.J , 686 and the observations of Beaumont, C.J.,
in Tulsidas v. Vaghela Raisinghji (1933) 57 Bom., 40 and of Kumara-
swami Sastri, J, in Ramaswami v Kasinatha AIR 1928 Mad, 226,
compare Imambandi v Mutsaddi (1919) 45 I A, 73, 45 Cal, 878,
Harilal v Gordhan (1927) 51 Bom, 1040 (sale by a guardian ad ho<
IS void)

ix) Ramanathan Chettiar v Raja Sir Annamalai Chettiar (1934)
57 Mad., 1031, 1051-2, Sankaralingam Chetty v. Kuppuswami A.I.R.
1935 Mad, 305 (2).

(ofi) Partap Singh v Sant Kiier (1938) 42 CWN, 817, AIR
1938 PC, 181.

(y) Waghela Raj Sanji v Shekh Masludin (1887) 14 I.A., 89, 11
Bom., 551, Ranrnal Singji v Vadilal (1896) 20 Bom., 61.

(z) Ramajogayya v. Jagannadhan (1919) 42 Mad., 185 F.B ,

Muthuswami v. Annamalai A I.R. 1937 Mad, 1.

(a) Muthuswami v. Annamalai A.I.R. 1937 Mad., 1; Ranrnal Singh
V Vadilal (1896) 20 Bom, 61, Bhawal Sahu v Baijnath (1908) 35
Cal, 320; Suchit Chaudhuri v. Harnandan Singh (1933) 12 Pat, 112,
compare Inder Chunder Singh v. Radha Kishore Ghose (1892) 19 I.A ,
90, 19 Cal, 507, Benares Bank, Ltd, v. Harinarain (1932) 54 All., 564
P.C., A.I.R. 1932 P.C., 182,

PARA. 238. j PERSONAL COVENANT OF GUARDIAN.

311

dian’s contract on behalf of the minor (6). The mere fact,
however, that the debt was incurred for the benefit of the
minor or for necessary purposes will not suffice (c). In
Zamindar of Polavaram v. Maharajah of Pittapur (d ) , the
Privy Council, reversing the decision of the Madras High
Court, held that where a minor is not personally responsible
for the payment of the debt, no decree against the “general
assets*’ could be given. It does not however appear that the
Privy Council intended to overrule the decision in Rama-
jogayya’s case (e) which was cited before it. The observa-
tion probably proceeded on the special facts of the case.

Wheie the guardian or legal representative carries on a
business on behalf of the minoi, creditors of the business
have no right of direct recourse against the minor or his

estate (/) ; but as the guardian is entitled to indemnity for

liabilities properly incurred out of the assets of the minor
embarked in the business, creditors are entitled to proceed
directly against such assets for liabilities properly incurred bv
the guardian. Where, therefore, the guardian has no right
to indemnity against such assets, as where he acted improperly,
neither have his creditors. This conclusion is arrived at not
on considerations of Hindu law, but of justice, equity and
good conscience following the English decisions (g).

Where the act is done by a peison in possession of pro-
perty, who does not profess to be acting on behalf of the
minor, but who claims to be an independent owner, and to be

(b) Ramajogayya v. Jagannadhan (1919) 42 Mad., 185 F.B.,
Satyanarayana v. Mallayya (1933 ) 58 Mad., 735 F.B.; Subramania
Ayya v. Arumugam Chetty (1903) 26 Mad., 330, Duraisami Reddi v
Muthial Reddi (1908) 31 Mad., 458; Padmakrishna Chettiar v. Naga-
mum (1916) 39 Mad., 915, Meenakshi Sundaram v. Ranga Ayyangar
A.IR. 1932 Mad, 696, compare Syed Sabir Husein v. Farzand Hasan
(1938) 65 I A, 119 128.

(r) Muthuswami v. Annanialai A.l.R. 1937 Mad., 1.

(d) (1936) 63 I.A., 304, 59 Mad., 910. overruling (1931) 54
Mad., 163.

(e) (1919) 42 Mad., 185 F.B.

(/) Khetra Mohan v. Nishi Kumar (1917) 22 C.W.N., 488. See
also a discussion of this subject in Sanyasi Charan Mandal v.
Krishnadan (1922) 49 LA, 108, 49 Cal., 560. Ramalinga Chetty v The
Vellore Mercantile Bank Ltd, (1929) 57 M.L.J., 822; see Ram Din v.
Mansa Ram (1929) 51 All., 1027 (guardian has no power to start a
new business) , see Lakshmi Ammal v. Ratna Naicker AIR 1935
Mad., 589 (1).

(g) Sanka Krishnamut thi v. The Bank of Burma (1912) 35 Mad.,
692; see Natesa N attar v. Manikka N attar (1938) 1 M L.J., 181;
Ferumal v, Ramasubramamam A.l.R, 1938 Mad., 265.

.^12

Equities on
setting aside

False

statement by
minor as to
his age

VIINORITl AND GUARDIANSHIP [CHAP. VI.

acting on his own behalf, it will not bind the infant who is
really entitled (A) .

§ 239. Where a minor on coming of age sues to set aside
a sale oi a nioitgage by his guaidian, he is bound to refund
the purchase money, if his estate has benefited by
It, or to hold the property charged with the amount of
debt from which it has been freed by the sale or mort-
gage ii) But the purchaser has to establish that the
minor had in fait leceived oi got the benefit of the pun hast*
money (y) Where the tontract lelied on has been made b\
the minor himself it is void ah initio, and therefore can form
no consideration which w'ould render the agreement binding
on the other party Nor can it laise any equities against the
minor. As Romer, L.J., said in a case which was affirmed by
the House of Lords ‘The short answer is that a Court of
Equity cannot say that it is equitable to (‘ompel a person to
pay any moneys in respect of a transaction winch, as against
that person, the Legislature has declared to be void” (k)

§ 2f(). A fraudulent representation by a minor that he is
of full age by which he induces another to contract with him
will not estop the minor from setting up the plea of minority.
Where, for instance, by such fraudulent representation, he
obtains a loan, he is not liable either in an action based upon
fraudulent misrepresentation oi in an action for money had
and received The action in such cases is, in substance,
ex contractu. Where, however, the infant is still in posses-
sion of some property or fund which he obtained by fraud,
he will be compelled to restore it to the former owner But
equity stops short of enforcing against him a contractual

{h) Bahiir Ah v Sookeea 13 W R , 63, Gadgeppa v Apaji (1879)
3 Bom, 237, Inderchiinder Singh v Radhakishore (1892) 19 I A , 90,
19 Cal, 507, Balwant Singh v R. Clancy (1912) 39 I.A., 109, 34 All,
296, Nandan Prasad v Abdul Aziz (1923) 45 All., 497

(i) Konwor Doorganath Roy v Ram Chunder Sen (1877) 4 I A,
52, 66, 2 Cal, 341, Kuvarji v Moti Haridas (1879) 3 Bom, 234,
Sinaya Pillai v Munisami (1899) 22 Mad, 289, Jagar Nath v. Lalta
Persad (1909) 31 All., 21, Tejpal v Ganga (1903) 25 All, 59, The
Eastern Mortgage & Agency Co ^ Ltd v Rebati Kumar (1906) 3
C.L J , 260, 268, 269, Jai Narain Lai v Bechoo Lull 1938 A L J . 521.

(;) Inuganti Venkatrama Rao v. Sobhanadri Appa Rao (1936) 63
I,A., 169, 179, 59 Mad, 539, 548, reversing (1931) 54 Mad., 352.

(k) Thurstan v. Nottingham Building Society (1902) 1 Ch., 13,
affd, (1903) A C., 6, folld. Mohori Bibee v, Dhurmodas (1903) 30 I. A,,
U4, 125, 30 Cal, 539, 548,

P4RAS. 240-241.] WHEN DECREE BINDS MINOR.

313

obligation entered into when he was an infant even by means
of fraud (/) .

§ 241. A minor, who is properly represented in a suit, Decrees,
will be bound by its result, whethei that result is arrived at
by decree after contest, or by compromise or withdrawal {m ) .

But the Court will not make a decree by consent without
ascertaining whether it is for the benefit of the infant. The
attention of the Court must be directly called to the fact that
the minor was a paity to the compromise, and it ought to be
shown by an order on the petition or in some wav not open to
doubt, that the leave of the Court was obtained {n). Where
the leave of the Court has not been given to enter into the
compromise, the compromise and decree are voidable at the
option of the minor (o) .

Where the father or any other person is a guardian ad litem
for his minor s<jn, he is bound by the provisions of the Civil
Procedure Code, and has no authority to bind the minor by
any compromise or agreement, even if he was himself a partv
to the suit, and had enteied into such agreement under condi-

(/) H. Leslie Ltd v Shedl (1914) 3 KB., 607, approved by the
Judicial Committee in Mahomed Syedol Ariffin v. Yeoh Ooi Gark
(1916) 43 I A, 256, 21 C.W.N , 257, (1917) M W.N , 162; Golam
Abditi V Hemchandra (1915) 20 C W.N , 418, Gadigeppa v. Balangauda
(1931) 55 Bom., 741 F.B.; Mt Hamtdart Bibi v. Nanhe Mai A.I.R
1933 All, 372, Guruswamy v Budhkarn Lai (1919) 26 M.L.T., 245,
Khan Giil v Lakha Singh (1928) 9 Lah., 701 F.B , Manmatha Kumar
Saha V. Exchange Loan Co, Ltd (1936 ) 41 C W N., 115, A.I.R. 1936
Cal., 567.

(m) Kamarajii v. Secretary of State (1888) 11 Mad., 309 » Chengal
Reddi V. Venkata Reddi (1889) 12 Mad., 483; Kanungoe Krishen v.

Romesh Chunder (1909) 13 C W.N., 163; Lekraj v. Mahtab (1871) 14

M I.A., 393; Mrinanioyi v logo Dtshiiri (1880) 5 Cal., 450.

(ti) Manohar v. Jadunath (1906) 33 I A., 128, 28 All., 585; Partab
Singh V. Bhabuti Singh (1913) 40 LA., 182, 35 All., 487.

(o) Civil Procedure Code, Act V of 1908, Or. 32, r. 7, Rajagopal
V. Muttupalem (1880) 3 Mad, 103, Kalavati v. Chedi Lai (1895) 17

All, 531; Ranga Rao v. Rajagopala (1899) 22 Mad, 378; Virupaksh-

appa V. Shidapa (1902) 26 Bom., 109 Phulwanti Kunwar v. Janeshar
Das (1924) 46 All, 575; Tarubala Dasi v. Sourendra Nath Mitter
(1924) 29 CWN, .597. A certificate of counsel for the minor that
the compromise is beneficial is sufficient. Sakinbai v. Shnmbai (1919)
47 I. A., 88, 38 M L J., 431, as to agreement by guardian ad litem to
refer to arbitration, see Lakshmana v. Chinnathambi (1901) 24 Mad.,
326; Vijaya v. Venkatasubba (1916) 39 Mad., 853; Sadashivappa v
Sangappa A.I.R. 1931 Bom., 500, but see Lutawan v. Lachya (1914)
.36 All., 69 FB. A compromise decree will be set aside in a regular
suit or on an application for review to the court that passed the
decree. Khajooroonissa v Rowshan Jehan (1877) 3 I. A., 291, 2 Cal..
184; Surendra v. Hemangini (1907) 34 Cal., 83; Aushootosh Chandra
V. Tara Prasanna Roy (1884) 10 Cal., 612; Murali v. Rehmoobhoy
(1891) 15 Bom., 594, Subramanian Chettiar v. Raja Rajeshwara Dorai
(1916) 39 Mad., 115 P.C,

314 MINORITY AND GUARDIANSHIP [CHAP. VI,

lions which would have made it binding on the minor if he
were not a party to the suit {p)

If either the compromise or the leave of the Court was
obtained by fraud or false representation or upon an admission
b\ a person who had in reality an interest opposed to that
of the infant, it will not bind the minoi and can be set
aside {q). Leave of the Court to withdraw an appeal or
*^uit. if it IS ill tei 111*4 of a compromise enteied into with a
guaidian ad I item on behalf of a ininoi, is necessary as it
w'ould be nere<4sarv where the next friend withdraws the suit
oi appeal (/ ) Where a decree binding on a mmoi has once
been obtained, the creditor will not be deprived of the benefit
of his decree, because he has h\ mistake taken out execution
against the guaidian bv name instead of against the minor
as represented bv the guardian (a I Cases might also aiise
in which a guardian, bv caielessness. amounting to gross
neglect of dutv. but without fiaud, failed properly to support
the intercuts of his ward, and thereby failed in a suit which
he ought to have won \ minor is not bound h\ a decree
against him m a suit where hi*» guaidian eondutted it with
gloss negligciK e ( / ) 4he Piiw (aruiuil lecentlv icmarked
that the distinction made in «4ome of the c’ases between negli-

{p) Ganesh Roit \ Tuljarani Rou U913) 40 I.A , 132, 36 Mad
295, Letchmana ( hetty \ Subbiah (/hetty (1924) 47 Mad.. 920,
Rit( hakhuttiya v Doraiswami (1924) 47 MLJ, 498

(q) Muhammad Mumtaz \ Sheo Rattangir (.1896) 23 lA, 5, 23
Cal, 934, Ram Aiitar \ Raja Muhammad Mumtaz (1897) 24 I A,
107, 24 Cal 853. Lekhraj \ Mahtab (1871) 11 M.I A , 393, Bibee
Solomon \ Abdul Aziz (1881) 6 Cal., 687, Raghubar Dayal v. Bhikya
Lai (1887) 12 (.al , 69, Bhanudas v knshnabai (1926) 50 Bom, 716

(/■) Sakinhai \ Shrimbat (1919) 47 lA, 88, 38 MLJ, 431,
Doraisami v Thunga^iami (1904) 27 Mad 377, Karmali v Rahimbhoy
(1889) 13 Bom., 137

(s) Han V Narayan (1888) 12 Bom., 427

(/) Mungmram v iMohunt Gursahai (1890) 16 I A , 195, 204, 17
Cal, p. 361, Lalla Sheo Churn v Romnandan (1895) 22 Cal., 8,
Cursandas v Ladkaiahii (1895) 19 B )in , 571, Gopal Rao v Narnsinga
(1899) 22 Mad, 309, per Lord Walbon, Ram Aiitar v Raja Muhammad
Mumtaz (1897) 24 I A., 107, p. 114, 24 Cal, 853, 861, or by review
Ram Sarup Lai v Shah Latafat (1902) 29 Cal, 735, Siraj Fatima v
Mahmud Ah (1932) 54 All 646 F.B , Punnayya v Viranna (1921)
15 Mad, 425, Ananda Rao v Appa Rao (1924) 47 MLJ., 700,
Viwesvara v Sunya Rao (1936) 59 Mad, 667, Mathura Singh v
Rama Rudra (1936) 14 Pat, 824; Bhagat Ram v Buta Singh A.I.R
1935 Lah , 349, Subbarathanam v. Gunavantha Lai (1937) 1 M.L.J.,
224, Balabhadra v. Rangarao (1937) 2 M.LJ, 236,

PARA. 241.]

WHEN DECREE SET ASIDE.

315

gence and gross negligence was elusive it^) and disapproved
of the ruling in Karri Bapannds case (f) which extended
the principle of s. 44 of the Indian Evidence Act to cases of
gross negligence.

A formal error in the mode of describing the minors will
not affect the validity of the decice, if they have been really
represented and sued (u). It is the duty of the Court to
appoint a proper person on behalf of a minor in the conduct
of a suit; and where the Court by its action has given its
sanction to the appearance of a person as guardian, a formal
order of appointment is not necessary (v).

A decree in a suit in which a minor is propeily represented
may be liable to be set aside for fraud or other reasons, but
till set aside it binds him, and proceedings to get rid of it
must be commenced within thiee years from the date of the
discovery of the fraud oi from the termination of the minoi •
ity . Where the minor has not been properly represented
the decree is a nullity, as far as he is concerned, even without
any allegation of fraud (tv). He need take no notice of it,
and may proceed to enforce his rights wjthin the period of
limitation which would be applicable if no decree had been
passed (x), Wheie a plaintiff does not choose to sue the
managing member alone but impleads the minor member

(t^) Tallun Venkata Seshayya v Thadtkonda Kotiswara (1937)
64 1.A, 17. 26, 11937J Mad.. 263.

U-) (1923) 45 M.L.J., 324

{u) Jogi Singh V. Behan Singh (1885) 11 Cal, 509, Bhaba Fershad
V. Secretary of State (1887) 14 Cal., 159 FB., Suresh Ch under v
Jugat Ch under (1887) 14 Cal., 204, Natesayyan v. Narasimmayyar
(1890) 13 Mad., 480, Han Saran Moitra v Bhubaneswan Debt (1889)
15 LA.. 195. 16 Cal, 40.

{v) Walian v. Bankh Behan Fershad Singh (1903) 30 I.A., 182,
30 Cal., 1021, Munnu Lai v. Ghulam Abbas (1910) 37 I.A., 77, 32
All., 287. If the irregularity results in the minor not being substantially
represented, the result of the proceeding cannot stand, Bhagwan Dayal
V. Poram Sukh Das (1915) 37 All.. 179; Shaih Abdul Karim v Thakur-
das (1928) 55 Cal.. 1241.

(i;l) The Indian Limitation Act, IX of 1908, Sched. I, Art. 95.
Mungmram Marwari v. Mohunt Gursahai (1890) 16 LA., 195, 203,
17 Cal., 347. As to the mode of setting aside such a decree, see Mirali
Rahimbhoy v. Rehmoobhay (1891) 15 Bom., 594.

iw) Rashidunnissa v. Muhammad (1909) 36 I A., 168, 31 All, 572,
Partab Singh v. Bhabuti Singh (1913) 40 LA., 182, 35 AIL, 487,
Dakeshur v. Rewar (1897) 24 Cal., 25; Daji Himat v. Dhirajram
(1888) 12 Bom., 18, Sham Lai v Ghasita (1901) 23 AIL, 459,
Lokenath Das v. Biharee Lai (1936) 63 Cal., 1227; Hitendra Narain v.
Sukhdeb (1929) 8 Pat, 558, Chitradhar v Kidar (1938) 17 Pat, 236.

{%) Daji Himat v. Dhirajram (1888) 12 Bom., 18. As to the
remedies available to a minor, see Bhagwan Dayal v. Param Sukh Das
(1917) 39 AIL. 8.

316

MINORITY AND GUARDIANSHIP

[chap. VI.

in his individual capacity, it is his duty to p^et a proper
guardian ad litem appointed for him. Otherwise, the decree
will not bind himf.ic^j.

Suits against
guardian.

A guardian is liable to make compensation to his ward
for losses aiising from his maladministration of the estate
oi negligence in management or in respect of his malversation
and fraudulent acts (y).

(jc^) Chandi v Balaji 11931) 53 All., '127.

(> ) /ss///- thunder \ Ragab SD »)f 1860, 1, 349, 611, Alunielauimal
\ Arunufhalam Pillai (1866) 3 MHC, 69, Snrat Chandra Roy v
Rnjom Mohun Roy (1908) 12 ( W N 481 (extrnl of dccoiintability) ,
see also Dhurm Das Pandes v Mt bhania boonden (1843) 3 MIA
229, Basanta Kiiman Debt v Kanikshya Kiimari (1905) 32 1 A , 181,
13 Cdl , 23 (liable for me’^ru profits without regaid to the period of
limitation), Rajaram v Kothandapani AIR 1937 Mad, 280

CHAPTER VII

EARLY LAW OF PROPERTY.

§ 242. The student who wishes to understand the Hindu Misleading
system of property must begin by freeing his mind from all effect of
previous notions diawn from English law. They would not ^f^^ogies
only be useless, but misleading. In England ownership, as
a rule, is single, independent, and unrestricted. It may be
joint, but the presumption will be to the contrary. It may be
restricted, but only in special instances, and under special
provisions. In India, on the contrary, joint ownership is the
rule, and will be presumed to exist in each individual case
until the conlraiy is proved. If an individual holds property
in severalty, it will in the next generation, relapse into a
state of joint tenancy. Absolute, unrestricted ownership, such
as enables the owner to do anything he likes with his pro-
perty, is the exception. The father is restrained by his sons,
the brother by his brotheis, the woman by her successors. If
property is free in the hands of its acquirer, it will resume
Its fetters in the hands of his heirs. Individual property is
the rule in the West: corporate property is the rule in the
East.

§ 243. Three forms of the corporate system of property Different
exist in India: the Patriarchal Family, the Joint Family and
the Village Community. The two former, in one shape or p%per?y^
other, may be said to pievail throughout the length and
breadth of India. The last still flourishes in the north-west
of Hindustan. It is traceable, though dying out, in Southern
India. It has disappeared, though we may be sure it formerly
existed, in Bengal and the upper pait of the peninsula. The
Village Community is a corporate body, of which the mem-
bers are families. The Joint Family is a corporate body,
of which the members aie individuals. But it is certain that
there are many villages which have never sprung from the
same family, and many places where the Family system has
•shown no tendency to grow into the Village system.

§ 244. The Village system of India may be studied with Village
most advantage in the Punjab, as it is there that we find it comn^ities^
in its most perfect, as well as in its transitional forms (a). ^

(a) The result of some of the researches upon this subject will
be found in two works by Mr. B. H. Baden-Powell upon Indian
Village Communities, a large and exhaustive volume published in
1896, and a smaller work which is a summary of the former, dated
1899.

3l8

Early law of property

[chap. Vil,

It piesents three marked phases, which exactly correspond
to the changes in an undivided family The closest form
of union is that which is known as the Communal Zemindari
village. Under this system ‘‘the land is so held that all the
village co-shareis have each their proportionate share in it
as common propeity, without any possession of, or title
to distinct portions of it, and the measure of each pro-
prietor’s interest is his shaie as fixed by the customary law
of inheritance The rents paid by the cultivators are thrown
into a common stock, with all other profits from the village
lands, and aftei deduction of the expenses the balance is
The Punjab. divided among the piopiielors accoiding to then shares” (6j
This corresponds to the undivided family in its purest state
The second stage is called the Pattidari village In it the
holdings are all in seveialty, and each shaier manages his
own portion of land But the extent of the share is deter-
mined by ancestral light, and is capable of being modified
from time to time upon this principle (c) This corres-
ponds to the stale of an undivided family in Bengal The
transitional stage between joint holdings and holdings in
severalty is to be found in the system of le-distribution,
which IS still piactised in the Pathan communities of Pesha-
war According to that practice, the holdings were originally
allotted to the individual families on the principle of strict
equality But as time introduced inequalities with reference
to the nunibeis settled on each holding, a periodical transfer
and le-distiibution of holdings took place (d) This practice
naturally dies out as the sense of individual property
strengthens, and as the habit of dealing with the shares by
mortgage and sale is introduced. The share of each family
then becomes its own The third and final stage is knowm
as the Bhaichari village. It agrees with the Pattidari form
inasmuch as each owmer holds his share in severalty. But it
differs fiom it, inasmuch as the extent of the holding is
strictly defined by the amount actually held in possession.
All refeience to ancestial right has disappeared, and no
change in the number of the co-sharers can entitle any
member to have his share enlaiged His rights have become
absolute instead of i el alive, and have ceased to be measured

(6) Punjab Customs, 105, 161. lliis stage is the same as that
described by Sir 11. S Maine, as existing in Servia and the adjoining
districts Ancient Law, 267, see Evans, Bosnia, 44

(c) Punjab Customs, 106, 156

{d) Punjab Customs, 125, 170 See Corresponding Customs, Maine
\nc. Law, 267, Village Communities, 81, Lavaleye, ch VI, Wallace,
Russia, I, 189.

PARAS. 244-245. J

VILLAGfe COMMUNlTlfeS.

319

by any reference to the extent of the whole village and the
numbers of those by whom it is held (e) . This is exactly
the state of a family after its members have come to a parti-
tion.

§ 245. The same causes which have broken up the Joint
Family of Bengal have led to the disappearance of the
Village system in that province. In Western and Central
India, the wars and devastations of Muhammadans, Mah-
idttas, and Pindarries swept away the village institutions,
ds well as almost eveiy other form of ancient proprietary
right (/). But in Southern India, among the Tamil races,
we find traces of similar communities (g). The village land-
holdeis are there represented by a class known as Mirasidars,
the extent and nature of whose rights are far from being
clearly ascertained {h). It is certain, however, that they
have a preferential right over other inhabitants to be
accepted as tenahts by the Government, a right which, it is
said, they do not even lose by neglecting to avail themselves
of it at each fresh settlement (i). They are jointly entitled
to receive certain fees and perquisites from the occupying
tenants, and to share in the common lands (/). Some
villages are even at the piesenl time held in shares by a
body of propiietois who claim to represent the original
owners, and a practice of exchanging and re-distributing
these shares is known still to exist though it is fast dying
out (A). In Madras the Government claim is made upon
each occupant separately, not upon the whole village, as in
the Punjab; but the contrary usage must have once existed

(e) Punjab Customs, 106, 161.

(/) See speech of Sir J. Lawrence, cited Punjab Customs, 138.

(g) Elphmstone, India, 66, 249.

(h) For a discussion of their lights see Seshachela Chetty v.
Chinnasawmy (1917) 40 Mad., 410, Kumarappa Reddi v. Manavala
Goundan (1918) 41 Mad, 374, Narasimha Raghavachari v. The Secy
of State for India (1931) 60 M.L.J, 137.

(i) Ramanooja v. Peetayen Mad. Dec. of 1850, 121; Alagappa v.
Ramasawmy Mad. Dec. of 1859, 101; 5th Report, House of Commons,
cited Mootoopermall v. Tondaven 1 N.C., 320 (275). See Fakir
Muhammad v. Tirumala Chariar (1876) 1 Mad., 205.

(/) Mootoopermall v. Tondaven 1 Stra. N.C., 300 (260); Koomara-
swamy v. Ragava Mad. Dec. of 1852, 38; Viswanadha v, Moottoo
Moodely Mad. Dec. of 1854, 141; Muniappa v. Kasturi Mad. Dec. of
1862, 50. In the Punjab this right may be retained by a co-sharer,
though he has ceased to possess any land in the village. Punjab
Customs, 108.

(A) Majfura Manual, Pt. V, 12; Venkataswami v. Subba Rau
(1866) 2 Mad. H.C., 1, 5; Anandayyan v. Devarajayyan, ib., 17;
Saminathiyan v. Saminathaiyan (1868) 4 Mad. H.C., 153; Sitaramiyar
V. Alagiri 3 Mad. Rev. Reg., 189.

Southern

India.

320

Patriarchal
family, its
origin and
nature.

Origin of
Joint Family.

Difference
between
Patriarchal
and Joint
Family

fcARLY Law of PROPERTV [chap. VlL

^ 246. The Patriarchal Family may be defined as ‘"a
group of natural or adoptive descendants, held together by
subjection to the eldest living ascendant, father, grandfather,
great-grandfather. Whatever be the formal prescription of
the law, the head of such a group is always in practice
despotic; and he is the object of a respect, if not always of
an affection, which is probably seated deeper than an>
positive institution” (/) The absolute authority over his
family possessed by the Roman father in virtue of this posi-
tion is well-known A very similar authority was once
possessed b> the Hindu father Manu says. “Three persons,
a wife, a son, and a slave, are declared by law to have in
general no wealth exclusively their owm, the wealth which
they may earn is regulaily acquired for the man to whom
they belong” (mj And so Narada says of a son, “he is of
age and independent, in case his parents be dead; during
their lifetime he is dependent, even though he be grown
old” (n) . But this doctiine was not peculiar to the Aryan
races (oj

§ 247. The tiansition fioin the Patriarchal to the Joint
Family arises (where it does arise) at the death of the
common ancestor, or head of the house If the family
choose to continue united, the eldest son would be the natural
head ( p ) But it is evident that his position would be very
diffeient lioin that of the deceased Patiiardi The one
was head of the family b\ a natural authority The other
can only be so by a delegated authority He is primus but
inter pares. Therefore, in the first place, he is head by
choice, or by natural selection, and not b) right. The eldest
IS the most natural, but not the necessary head, and he may
be set aside in favour of one who is better suited for the
post Hence Narada sa^s (</) "‘Let the eldest brother, by
consent, support the rest like a father, or let a younger
brother, who is capable, do so, the prosperity of the family

(/) Early Inslitulions 116, Ancient Law, 133. Here seems to be
the origin of the great Hindu canon of inheritance, that the funeral
cake stops at the thud in descent.

im) Manu, VIII, §416, Narada. \, §41, Dig, II, 29

(n) Nar, I, 36 S.B E , Vol XXXIII, 51, See, too, Sankha & Likh.,
Dig , 11. 503.

(o) For instance*, of similar usage among the Kandhs, see Hunter’s
Orissa, II, 72, among the Tamils in Jaffna, see Thesawaleme, TV,
among the Tamils m Pondicherry, see Sorg H L., 173.

{[)) Mann IX, §105 For loini Family of Matiiarchal type, set
\ppx III

{q) Nar, XIII, §5

t>AftAS. 247-248.] NATURE OF EARLY HOLDING.

321

depends on ability.” But he is no longer looked upon as
the owner of the property, but as its manager (r) .

§ 248. The ancient Hindu writers give us little inform- Early Hindu
ation as to the earlier stages of the law of property. There writers,
is no Vedic evidence that the village community, as such held
land. But the indications are in the direction of individual
or family holdings ( 5 ) . Traces of communal ownership
may perhaps be found in the common pasturage and in
the mode of settling boundary disputes between villages (/).

There are also tiaces indicating that the rights of a family
in their propeity were limited by the rights of others outside
the family. Alienation of land appears to have been subject
to the consent of the village community and kinsmen, pro-
bably because they were given the right of pre-emption. This
is perhaps the real iinpoit of two anonymous texts cited 111 Limitation of
the Mitakshara : “Land passes by six formalities; by consent family rights,
of townsmen, of kinsmen, of neighbours and of hens, and by
gift of gold and water.” “In regard to the immovable
estate, sale is not allowed; it may be mortgaged by consent
of parties interested” (w). This would also explain the text
of Brihaspati, cited in the Mitakshara, 1, 1, § 30. “Separated
kinsmen, as those who are unseparated, are equal in respect of
immovables, for one has not power over the whole to make
a gift, sale or mortgage.” It is evident that paitition would
put an end to fuither rights within the family, but would
not affect the rights which the divided members, in common
with the rest of the village sharers, might possess as ultimate
reveisioneis. Consequently they would retain the right to
foibid acts by which that reversion might be affected. And
this is the law in the Punjab to the present day (v). Rights of
Foi the same leason, when the sub-division of a co-sharer
became saleable, the members of the community had a right
of pre-emption, so as to keep the land within their own
body. This light exists, and is recognized at present by
statute, in the Punjab {w).

(r) Sec Maine, Early Institutions, 116.

(s) Vedic Index, I, 245, Jolly, L. & C., 203-204; T.L.L., 89.

it) Manu, VIII, §§237-265; Jolly, TX.L., 88-89; L. & C., 205-210.

iu) Mit., I, 1, §§31, 32; see, too, Vivada Chintamani, p. 309.
Vijnanesvara however treats this consent as required for the publicity
of the transaction and to prevent disputes, not as aflecUng its validit).

(v) Punjab Customs, 73; Mitakshara, I, 4, §26; see the text of
Uganas that land “was indivisible among kinsmen even to the
thousandth degree”; see Mayr., 24, 30, 31.

(tv) Punjab Customs, 186; Act XII of 1878, §2; for a similar
usage among the Tamils of Jaffna, see Thesawaleme, VII, 1, 2.

23

EARLY LAW OE PROPERTY.

tcHAP. Vlt,

32 ^

Origin of
‘iolf acquired
property

Its earliest
forms

§ 249. With the exception of these scattered and doubt-
ful hints, the Sanskrit writers take up the history of the
family at a period when it had become an independent unit,
unrestrained by any rights external to itself. When the
family is undivided, the worship of the manes, gods and
Brahmins by those residing together and cooking their food
together in one house, is single {%) . Giving, receiving,
cattle, food, houses, fields and servants, cooking, religious
duties, income and expenditure — are all joint amongst the
brothers (y) . As the status of the undivided family was too
familial to everyone to require discussion, the Smritis notice
only those new conditions which were destined to bring
about the dissolution of the family itself These were Self-
Acqaisiiion, Partition and Alienation.

§ 250. Self -acquired propel ty in the eaihest state of
Indian society did not exist (z) . So where the family was
of the purely Patriarchal type, the whole pf the property
was owned by the father, and all acquisitions made by the
members of the family were made for him, and fell into the
common stock (a) When the Joint Family aiose, self-
acquisition became possible, but was gradual in its rise.
While the family lived together m a single house, suppoited
by the produce of the common land, the labour of all went
to the common stock and there could be no room for sepa-
rate acquisition.

§ 251. But as society progressed and as arts, crafts and
industries developed, self-acquisition re(ei\ed inci easing
iccognition and its area gradually widened. The claims ol the
joint family and the claims of the individual to his acquisi-
tions weie finally reconciled either by giving a greater share
to the acqujiei or hy the requirement that the acquisition must
not have been at the expense of the common jiiopcilv The
cailiest forms of self-acquisition appeal to have been
the gains of science and valour, peculiar to the }3rahman
and the Kvhatri\a Wealth acquiied with a wife, gifts fiom
iclations Ol frnnids, and ancestial piopertv lost to the
family and recovered by the independent exeitions of
a single member, were also included in the list; and
Manu laid down the general rule: “What a brother has
acquired by labour or skill, without using the patri-
mony, he shall not give up without his assent, for it was

(x) Brih., XXV, 6. Nar, XIII, 37

(y) Nar . XIIT. 38
( 2 ) See Mayr, 28

(a) Manu. VIII, § 416.

i’AkAs. 25i-252.] beginnings of self-acquisition.

323

gained by his own exertion” (6). But we can see that self-
acquisitions were at first not favouied, and that Manu’s
formula was rather strained against the acquirer than for
him. Katyayana and Brihaspati refuse to recognize the
gains of science as self-acquisition, when they were earned
by means of instruction imparted at the expense of the
family (c) ; and Vyasa similarly limits the gains of valour,
if they were obtained with supplies from the common
estate, such as a vehicle, a weapon, or the like, only allowing
the acquirer to retain a double share (d). It would also
seem doubtful whether the acquirer was originally entitled
to the exclusive possession of the whole of his acquisitions.
Vasishtha says: "‘If any of the brothers has gained some-
thing by his own efforts, he receives a double share.” This
text is supposed by Dr. Mayr to mark a stage at which
the only benefit obtained by the acquirer was a right to
retain, on partition, an extra poition of the fruits of his
special industry te). If that be the correct explanation, the
text of Vyasa just quoted shows a fuithei step in advance.
He restricts the rights of the acquiiei, only in cases where
assistance, however slight., has been obtained from the family
funds; as where a waiiioi has won spoil in battle, by using
the family sword or chariot. In later times all trace of such
a restriction had passed away. The text of Vasishtha had
lost its original meaning, and was explained as extending
Manu’s rule, not as restricting it, and as establishing that
a member of a family, who made use of the patrimony to
obtain special gains, was entitled to a double poition as his
reward (/). This is evidently opposed both to the spirit
and the lettei of the ancient law. It has, however, come to
be the pieseiit lule in Bengal.

§ 2.S2 It docs not appear that an acquirer had from
the first an absolute property in his acquisition, to the extent
of disposing of it in any way he thought fit. Originally the
benefit which he deiived from a special acquisition seems
to have come to him in the form of a special share at the
lime of partition (g). While the family remained undivided,

(6) Mann, IX, §§206-209, Gautama, XXVIII, §§30, 31; Nar.,
XIII, §§6, 10, 11; Vyasa, Dig., II, 444.

(c) Dig., II, 444, m.

id) Dig., n, 281; V. May., IV, 7, § 12.

(c) Vas., XVII, §51; Mayr., 29, 30; Dr. Burneirs translation of
Varadarajah (p. 31) renders it. “If any of them have self-acquired
property, let him take two shares.*’ The text seems to be similarly
interpreted by Jimutavahana. Day a Bhaga, II, § 41.

(/) Mit , I, 4, §29; Daya Bhaga, VI, 1, §§24-29.

ie) Vibhiiu, XVII, §1; Yajii., II, 118-120.

Not favoured.

Right over
self-acqui-
sitions.

324

Early law of property.

[chap, vit,

Motives for
Partition.

he would be entitled to the exclusive use of his separate
gains. If he died undivided, they would piobably fall into
the common stock {h) Probably he was only allowed to
alienate, wheie such alienation was the proper mode of en-
joying the use of the pioperty This would account foi the
distinction which is drawn between self-acquired movables
and immovables. The right to alienate the foimer is
universally admitted by the commentators, but the Mitakshara
cites with approval a text, which states* “Though immov-
ables oi bipeds have been acquired by a man himself, a
gift or sale of them should not be made without convening
all the sons” (0*

§ 25 >. Paitition of piopeiU b\ the fathei was even a
Vedic custom and the Smiitis refer to Manu having divided
his piopeity amongst his sons(y). Accoiding to the text
of Usanas (A), saciificial gams, land, written documents,
prepared food, water and women aie mdr/isible amongst
kinsmen even to the thousandth degree. When the family
became too numerous or when a father wished to become a
vanaprastha (hermit) or an ascetic or where more adventurous
members wanted to take their shares and leave the family
home or when there were dissensions amongst members or
their wives or when each member wanted to letain and
improve his self-acquisitions, partition would suggest itself
as the obvious solution; but land itself would continue to
be held in common. A minor reason for partition is pro-
bably to be found in the dictum of Gautama: “But in parti-
tion there is an increase of spiritual merit” (/). Apastaniba
apparently required that the father should, during his life-
time, divide his wealth equally amongst his sons so as to
enable him to become an ascetic or a heimit(m). Manu
says: “Eithei let them thus live together, or apart, if each
desires to gain spiritual merit; foi by their being separate,
their meiit mcicases, hence sepaiation is meritorious” {7i)>
Medatithi’s comment upon it is: "Tor brolheis who have not
divided their property, a single leligious duty is performed,”

(h) This IS at present the case with the Nambudri Brahmans of
the West Coast (11 Mad, 162)

(i) Mit., I, 1, § 27. This text is asciibed by Mr Colebrooke to
Vyasa. In the Vivada Chintamani, p. 309, it is attributed to Prakasa,
while Jagannatha (piotes it as from Yajnavalkya. Dig., 1, 411.

(/) Baudli , IT, 2, 3, 2, Apas, fl, 6, 14, 11

(^) The text is cited in Mit , T, IV, 26.

(/) Gaiit., XXVIII, 4

(m) Apas, II, 6, 14, 1

(n) Manu, IX, III; see Dayabhaga, I, 27, Vivada Ralnakara, I, 12.

PARAS. 253-254.] SLOW evolution of partition.

325

and that “neither separation by itself nor nonseparation by
itself is either meritorious or sinful” {o). It does not appear
therefore that the institution of partition was in the main due
to the doctrine that separation was productive of greater
spiritual benefit. Secular motives must have been largely
responsible for partition from very early times and Manu
does not appear to insist on partition, for he makes it
entirely optional to separate or not to separate. Sankha and
Likhita go further: “Willingly let them live together; by
union they exhibit thrift” (p). Sons who enforced a divi-
sion of the family estate against the wish of their father
were excluded from funeral repasts, showing that the divi-
sion though not illegal, was contia bonos mores {q).
According to the Arthasastra of Kautilya, partition after the
death of the parents was normal and there is no trace in
it of the doctrine of spiritual benefit. On the other hand,
partition of inheritance, more than any other institution was
governed by “the customs prevalent in the country, caste,
guild {sangha) or the village of the inheritors” (r).

§ 254. It was, however, by very slow steps that the
right to a partition reached its present form. At first it
is possible that a member who insisted on leaving the family
for his own purposes, went out with only a nominal share,
or such an amount as the other members were willing to
part with ( 5 ). This is the more probable, since, so long as
the family retained its Patriarchal form the son could
certainly not have compelled his father to give him a share
at all, or any largei portion than he chose. The doctrine
that property was by birth — in the sense that each son was
the equal of his father — had then no existence. The son was
a mere appendage to his father, and had no rights of
property as opposed to him (^). It is quite certain that in
the earlier period of Hindu law, no son could compel his
father to come to a partition with him. Manu speaks only
of a division after the death of the father, and savs
expressly that the brotheis have no power over the property
while the parents live. Kulluka Bhatta adds in a gloss:

(0) Jha’s Manusmriti with Medhatithi Bhashya, Vol. V, 91.

(p) Dig., II, 204; Smriti Chandrika, 1, 40.

iq) Gaut, XV, 19; Jolly, T.L.L., 99.

(r) Arthas., Ill, 7; Shamasastri, 203.

(s) Manu, IX, 207; Yajn., II, 116; see Peddayya v. Ramalingam
(1888) 11 Mad., 406.

(1) Manu, VIII, 416; the properly of the family was not legally
family property but only the property of the head of the house, the
other members having only moral claims upon it. Vedic Index, I, 351.

Its deve-
lopment.

Original^
subject to
consent of
father.

326

EARLY LAW OF PROPERTY.

[chap. VTI,

Growth of
son’s right.

Partition
deferred tdl
death of
mother.

“Unless the father chooses to distribute it” (a). The
consent of the father is also stated by Baudhayana, Gautama,
and Devala to be indispensable to a partition of ancestral
property (v), and Sankha and Likhita even make his
consent necessary where the sons desire to have a partition
of their own self-acquired property (le) . Subsequently a
partition was allowed even without the father’s wish, if he
was old, disturbed in intellect, or diseased; that is, if he was
no longer fit to exercise his paternal authority (x) . A final
step was taken when it was acknowledged that father and
son had equal ownership in ancestial properly; that is to
say, when the Patriarchal Family had changed into the
Joint Family. It then became the rule that the sons could
require a division of the ancestral propeitv, but not of the
acquired property (y) The joint family then ceased to be
a corporation with perpetual succession, and became a co-
parcenary, teiminablc at will. ^

§ 255. There seems to be no doubt that originally the
right of brothers to divide the family estate i\as deferred till
after the death, not only of the father, but of the mother (z)
Gautama, Narada and Brihaspati allow of partition during
the mother’s life, but make it an essential that she should
have become incapable of child-bearing, or that cohabitation
on the part of the father should have ceased (a). The latter
limitation, which is also the later, may be explained as in-
tended to protect the inteiests of aftei-boin children f 6).
After the father’s death, during the nonage of sons, while
the daughters were vet unmarried, partition was piobably
postponed till aftei the death of the mother fc). The text

(m) Mann, IX, § 104 A text of Maim HX ^ 209) is bowf^er,
cited m the Mil (I, v, § 11) as evidencing the right of sons to compel
a partition of the ancestral property held hy their father The trans-
lation given hy Sir W Tones (brethren for sons) incorrect, see
2 W & B , XXIV, edn The text itself refers, not to partition, but

to self-acqiiisition It contemplates the continuance of the coparcenary,
not Its dissolution, and points out what property falls into the common
stock and what does not

(t;) Baudh, 11, 2, 3, 8, Gant, XXVIII, 2, Devala, Dig, II, 196.

iw) Dig, TT, 203, 205

(:t) Sankha riled Mitak«<haia I, 2, §7

(y) Vya^^a, Dig, IT, 258; Vi^^hnu, XVIT, 2

(z) Manu, IX, §104, Sankha and Likhita, Dig TT 203, Yajn , IT,
§117, Mitakshaia, I, 3, §§1-3, Daya Bhaga, 111, §1.

(a) Gaut., XXVIII, §2, Nar, XIII, §3, Dig, IT, 266

(b) Daya Bhaga, I, §45 Tlie Sara«^vati Vila<^a, p 12 §61, treats
it as introduced in the father's^ interest, so as to sec me him against a
compulsory partition, so long as he might wish to maiiv again,

(() Nar, T, 36; XIII, 3, folly, L ^ C, 179,

PARAS. 255-256.] TIME OF PARTITION.

327

of Manu (IX, 104) which defers partition till after the death
of both parents, probably means, as Visvarupa, the Smriti
Chandrika and the Vyavahara Mayukha put it, that the pro-
perty of each parent can only be divided after his or her
death (d). It may be that as the mother was entitled to a
share on partition, if the sons wanted to make a partition
completely, they had to wait till the mother’s death.

The Mitakshara, in dealing with the time of partition, Mitakslmra.
quotes several texts as establishing that partition, during the
father’s lifetime, can only be made in three cases, viz,, first,
when he himself desires it; or, secondly, even against his
will, when both parents are incapable of producing issue;
or, thirdly, when the father is addicted to vice, or afflicted
with mental or bodily disease (e) . And so it quotes, with-
out any objection or explanation, the passage which directs
partition to take place after the death of both parents (/).

But in treating* of the rights of father and son to ancestral
property, it explains these texts as referring only to the self-
acquired property of the father, and concludes that “while
the mother is capable of bearing more sons, and the father
retains his worldly affections, and does not desire partition,
a distribution of the grandfather’s estate does nevertheless
take place by the will of the son” (g).

§ 256. The author of the Dayabhaga had to peiform Bengal
an exactly opposite feat of interpretation to that ac- writers,
romplished by the author of the Mitakshara. The latter
considered the sons to be joint owners with their father, and
had to explain away the texts which restricted or delayed
their right to a partition. The former considered that the
father was the exclusive owner, and had to explain away the
other texts which authorised a partition. The mode in which
he attained this result will be found in the first chaptei
of the Daya Bhaga. Jimulavahana takes up all the texts
which assert that sons cannot compel a partition during the
father’s lifetime, as supporting his view that property in the
sons arises not by birth, but by the death of the father.
Consequently, even in the case of ancestral property, there
can be no partition during the father’s life, without his

(d) Visvarupa, 243; Smriti Chandrika, I, 12-17; Vyav. Mayukha,
IV, 4, 1 (Gharpiire’s tran^., 51); Viramit , II, 1, 2-3, Setlnr’s <*(1 ,
309.

(e) Mit., I, 2, §7. The Viramitrodaya only recognises the Ist and
3rd cases II, i, 2-3, Setlur’s ed., 309.

(/) Mit., I, 3, §§ 1, 2.

(g) Mit., I, V, §§ 5, 7, 8, 11, To the same effect is the Mayukha,
IV, IV, §§ 1-4.

328

EARLY LAW OF PROPERTY.

[chap, VII,

Rights of
mother.

Development
of right to
alienate.

consent. Upon his death, whether actual or civil, the pro-
perty of the sons arises for the first time, and with it their
right to a division (A).

The condition that the mother should be past child-bear-
ing is taken by the wiiteis of this school to be a limitation
upon the fathei’s powei to make a partition, wheie the
property is ancestral, on the ground that, if the ancestral
estate were divided while the mother was still productive, the
after-born childien would }3e deprived of subsistence ii) It
is settled that neithei the mother’s death nor her consent is
now required to effect a partition (j)

§ 257. The result is that the right to a partition at anv
time, between co-sharers, is now admitted universally But
the writers of the Bengal school do not allow that sons are
co-sharers with their father. Elsewhere all members of a
Joint Family are considered to be co-sharers, whethei they
are related to each other lineally or collateially.

§ 258 The right of alienation in ancient Hindu law
appears, at fiist, to have been absolute when the father was the
head of the familv and his supreme power was admitted (A).
Restrictions, how^ever, were giadually imposed. Gautama
refers to purchase as a mode of acquisition and to acceptance
as an additional mode for a Brahmin (AM Sales and mort*
gages are mentioned and the fiequent reference to gifts
argues in favoui of the light of alienation from early
times (/). The texts of Maim and Narada support the con-
clusion that the father had absolute coiitiol ovei the piopeity,
whethei ancestral or self-acquired (/M According to Narada
and Biihaspati, the first restriction appears to have lieen that
neither joint piopeity nor the whole property of one who
has offspring could be the subject of gift (m) The main-
tenance of the family was the principal consideiation and
any gift which causes hardship to the family is reprehensible

(h) Daya Bhaga, T, 11-31, 38-44, 50, II, §8 Ragliiinanddna, T,
5-14, II, 26, 31, 35 This appears to he the rule in the Punjab. See
Punjab Customary Law, II, 168, III, 122

(i) Daya Bhaga, I, §45, DKS, VI, §1.

(;) Dig., II, 286; 1 W. MacN , 50; but see Daya Bhaga, III, 1-11;
D.K.S., VII, 1.

(A) Vedic Index., I, 351,

(Ai) Gaut., X, 39 40; Manu, X, 115.

(/) Manu, VIII. 165, 199.

(/i) Manu, IX, 104; Nar., XIII, 15.

(m) Nar., IV, 4; Brih., XV, 2.

PARA. 258.]

RECOGNITION OF ALIENATION.

329

and not meritorious (/i) . Otherwise, Brihaspati says that
the religious merit supposed to be acquired by the giver,
though tasting like honey at first, will change into poison
in the end (o). A man was permitted to “drink the soma-
juice” at a saciifice only when he had, for three years at
least, property sufficient to provide for those whom he was
bound to maintain (p). Absolute powers of alienation were
therefore, from the beginning, recognised over self -acquired
property (q). The power of alienation also existed in res-
pect of property inherited from the father or other ancestor,
subject to the later restriction as to the bestowal of the whole.
Even an ancestral field or house could be alienated (r). But
the alienation of the entire or perhaps a large portion of
the property required the assent of the wife, kinsmen and
the ruler for its validity ( 5 ).

The older of owneiship to be found in Manu,

evidently was that sons had no right of ownership so long as
their father was alive. Any doubt on this point is dispelled
by the Arthasaslra of Kautilya which states the rule almost
in the same terms (^). There was evidently a difference in
the law schools of ancient India on the question long before
the time of Vijnanesvara. Vishnu, Yajnavalkya and Brihas-
pati, while they concede the absolute right of the father as
to self-acquired property, make the sons joint owners with
him in respect of ancestral property (i^). The claims of the
sons to enforce a partition, even during the father’s lifetime,
were probably adjusted by allowing him to exercise absolute
control over self-acquired property while their equal rights
were declared in ancestral property. When once the equal
right of sons in ancestral property was conceded, it followed
that their ownership was by a title antecedent to partition
and to the death of their father and the right by birth be-
came logically inevitable. A text attributed to Gautama (v)

(n) Nar , IV, 6, and Asaliaya’s commentary on it. S.B.E., Vol.
XXXI IT, 128.

io) Brih, XV, 3.

(p) Yajn, I, 124, Nar., IV, 7, The Visvajit sacrifice (V. Mayukha,
IV, 1, 11) which consisted in the gift of the whole property, might
have suggested these restrictions.

(q) Brih., XV, 4 5, XXV, 12-13.

(r) Brih., XV, 4-5.

( 5 ) Brih., XV, 6-7; Yajn., II, 175.

(t) Arthas., Ill, 5; Shamasastri, 197.

(u) Vishnu, XVII, 2; Yajn., II, 121; Brih., XXV, 2, 3.

(v) Mit., I, 1, 23; Smriti Chandrika, I, 27; V. Mayukha, IV, 1, 3;
Sarasvati Vilasa, para 460; Viramitrodaya, I, 23 (Setlur’s ed., 285);
Parasara Madhaviyam, s. 4.

330

EARLY LAW OF PROPERTY.

[chap. VII,

expressly settling the question is relied on in the Mitakshara,
the Smriti Chandrika, the Vyavahara Mayukha, the
Parasara Madhaviyam, the Sarasvati Vilasa and the
Viramitrodaya. The Smriti Chandrika quotes or interprets
a text of Sankha in the same sense (iv) . The right by birth
was, long before Vijnanesvara, known to Visvarupa (a;) , and
is certainly discussed by Medhatithi who quotes an anonym-
ous text: “The son becomes the owner of the property as
soon as he is born” iy) , The texts of Manu, Narada and
Devala {z) were, howevei, followed by the other school of
Hindu lawyers, for instance, by the author of the Sangraha
(c. 800 A.D. ) and Dharesvara (c 1000 AD) (a). Vijna-
nesvara and Jimutavahana were only the most logical and
successful exponents of their respective schools. As Dr.
Jolly says, Jimutavahana’s opinions were neither peculiar
to himself nor to the Bengal school of lawyers (b) .

The Aithasastra of Kautilya says that after the parents’
demise, the division of the propeity shall take place per
stirpes (according to fathers). “In the undivided paternal
property which has descended, sons and grandsons till the
fourth degree from the father shall have their shares because
the pinda is undivided upto that degree and all those who
are of the divided pinda shall share equally” (c). The
right of representation is equally recognised by Yajnavalkya
and others (d). The germs of the right by birth may
perhaps be traced to the right of representation accord-
ing to which, the son, grandson and great-grandson take
together (e). But the doctrine of right by birth was, in
effect, established when the equal lights of the father and

{w) Smriti Chandrika, I, 19-20

(rc) Visvarupa, 244-245, Kane, 259

(y) Medhatithi on Manu, IX, 212, see abo 209, Tha’s edn , Vol
V, 176; also 172-174

(z) Manu, TX, 104, Nar, XTIT, 2, For Devala’s text, see Daya-
bhaga, I, 18

ia) See Smriti Chandrika, I, 27, V Mayukha, IV, 1, 3 (Mandlik,
32). They hold that “partition only was the cause of son’s ownership”
Jolly, TLL., 108-109

(6) Jolly, T.L.L., 109. Mr. Jayaswal considers that the germs of
the theory of the Bengal school are to he found in the law of the
Arthasastra and in Manu, M. & Y., 255, 263.

(c) Arthas., Ill, 5; Shamasastri, 197

id) Yajn, II, 120, Vishnu, XVII, 23, Brih., XXV, 14

(e) In Roman law, “the Sui heredes were entitled to the fir^t
place and that not so much in the character of heirs as of person now
entering upon the active exercise of rights hitherto existing, though,
in a manner, dormant.” Muirhead, Hi‘«torical Introduction to the Private
Law of Rome, 156.

PARAS. 258-259.] sons’ right by birth.

331

the son in ancestral property were admitted (/) . Vijna-
nesvara does not, however, confine the son’s right by birth
to ancestral property. As sonship was the cause of owner-
ship he extended it logically to the father’s self-acquired
or separate property, the only difference being that while
in ancestial property, the son had equal rights with the
father, in self-acquired property his rights were subordinate
and unequal (g). His opinion as to the son’s right both
in self-acquired as in ancestral properties is followed by
all the writeis of the Mitakshara school (g^).

§ 259. The author of the Mitakshara enters into an Mitakdiara.

elaborate disquisition, as to whether property in the son
arises for the first time by partition, or the death of the pie-
vious owner, or exists previously by birth (/i) . He quotes
two anonymous texts, “The father is master of the gems,
pc'arls, corals,, and of all other (movable property), but

neither the father nor the grandfather is of the whole im-
movable estate;” and this other passage, “By favour of the
father, clothes and ornaments aie used, but immovable pro-
perty may not be consumed even with the father’s indulg-
ence” (i). He sums up his views in §§ 27, 28 as follows: —

“Therefore it is a settled point that property in the paternal Property is
01 ancestral estate is by birth, although the father has birth,

independent powei in the disposal of effects other than

immovables for indispensable acts of duty^ and foi pui poses
pi escribed by texts of law, as gifts through affection, support
of the family, lelief from distress, and so forth; but he is
subject to the contiol of his sons and the rest in regard to
the immovable estate, whether acquiied by himself or in-
herited from his father or other predecessor; since it is
ordained, ‘though immovables or bipeds have been acquired
by a man himself, a gift or sale of them should not be made
without convening all the sons. They who are born, and
they who are yet unbegotten, and they who are still in the

(/) See also Jayaswal, M. & Y , 256.

(g) Mit., I, 1, 23, 24, 27; I, v, 10. It is a settled point that
property m the father’s or paternal grandfather’s estate is by birth;
‘ancestral* in Colebrooke’s translation is a mistake for ‘grandfather’s*.
Muhammad Hussain Khan v. Kishva Nandan Sahai (1937) All., 655,
664, 665, 64. LA, 250.

(gi) Smriti Chandnka, VIII, 21*24; Vyav. Mayuklia, IV, 1, 3
(pp. 44-45, Gharpiire) Parasara Madhaviyam, pages 5-6 (para 4) ;
Sarasvati Vilasa, para 460; Viramitrodaya, I, 23 (Setlur's ed., 285).

(A) Mit., I, 1, §§ 17-27. Viramit., ch. I.

(i) Mit., I, 1, § 21. The former of these texts is cited by Jiniiita-
vahana, II, § 32, as from Yajnavalkya, but cannot be found in the
existing text. It is also opposed to Yajnavalkya, IT, 5 J2L

332

EARLY LAW OF PROPERTY.

[chap. VII,

Father’s
power over
movables.

womb, require the means of support. No gift or sale should
therefore be made.’ An exception to its follows: “Even a
single individual may conclude a donation, mortgage, or sale
of immovable property during a season of distiriess, for the
sake of the family, and especially for pious purposes.”

The opinion of Vijnanesvaia that sons have by biith an
equal ownership with the father, in respect of ancestral im-
movable property, is followed by all writers, except those
of the Bengal school (y). But upon the other points, viz.,
as to the extent of the father’s powei over ancestral movables,
and the limitation upon his power over self-acquired land,
there is no such haimony, and his own views appear to have
been in a state of flux upon the subject.

As regards movables, it is evident that the head of the
family, whether in his capacity as father or as manager, must
necessarily have a very large control over them. The very
instance adduced by the text — gems, pearls and corals —
points to things over which the father would necessarily have
a special control {k) And the Mayukha says of this very
text, “it means the father's independence only in the wearing
and other use of ear-rings, rings, etc , but not so far as gilt or
other alienation. Neither is it with a view to the cessation
of the cause of his ownership in the production of a son
This very meaning is made manifest also by the text noticing
only gems and such things as are not injured by use” (/.)

In another poition of the Mitakshara {P) is quoted with-
out comment a text of Yajnavalkya (II, ^21) “The owner-
ship of father and son is the same in land which was acquired
by the grandfather, or in a coriody (or settled income), or
in chattels which belonged to him.” This evidently contra-
dicts the idea that the father had any absolute power of dis-
posal over ancestral movables. Further, although in ch I,
1, § 24, he lays down the general principle that “the father
has power, under the same texts, to give away such effects,
though acquired by his father;” in § 27, already cjuoted, he
seems to limit this power to the light of disposing of
movables for such necessary or suitable purposes as would

(/) SmiUi Chandnkd, VIII, §§17-27, Madhaviyam, §§15, 16,
Varadarajah, pp 4-6, V May, IV, 1, §§ 3, 4, Vivada Chintamani, 309,
Vivada Ratnakara, II, 2-5, Madana Parijata, 660-662 (Calcutta edn.),
Setlur’s ed., 524-525, Sarasvati Vilasa, paras 214-226; Viramit., I,
23-30, Setlur’s ed., 284-286.

ik) Mit., I, 1, 21.

(I) V. May., IV, 1, § 5.

(/i) Mil., I, 5, § 3.

?ARAS. ^59-260.] RESTRICTIONS OVER SELF- ACQUISITIONS.

come within the ordinary powers of the head of a household.
Lastly, it is important to observe that none of the later writers
in Southern India, who follow the Mitakshara, make any
such distinction. They quote the above text of Yajnavalkya,
and a similar one from Brihaspati, which place ancestral
movables and immovables on exactly the same footing as
regards the son’s equal right by birth (/n).

§ 260. As regards the second point, viz,, the restriction
upon a father’s power to dispose of his own self-acquired
land, Vijnanesvara is equally at variance with himself. He
asserts the restriction in the most unqualified terms in the
passage already quoted. He denies it in equally unqualified
terms in a later passage (/i). “The grandson has a right of
prohibition, if his unseparaled father is making a donation,
or a sale of effects inherited from the grandfather; but he
has no right of interference, if the effects were acquired by
the father. On* the contrary, he must acquiesce, because he
is dependent. Consequently the difference is this: although
he has a right by birth in his father’s and in his grand-
father’s property, still, since he is dependent on his father
in regard to the paternal estate, and since the father has a
predominant interest, as it was acquired by himself, the
son must acquiesce in the father’s disposal of his own
acquired property ; but since both have indiscriminately a
right in the grandfather’s estate, the son has a power of inter-
diction.” And in the next paragraph he quotes Manu, IX,
§ 209, as showing that the father was not compelled to share
self-acquired wealth with his sons. The Smriti Chandrika is
explicit on the point that as regards all self-acquired pro-
perty, without any exception, the father has independent
power, to the extent of giving it away at his pleasure or
enjoying it himself, and he cites texts of Katyayana and
Brihaspati, which state this to be the rule as plainly as can
be (o). On the other hand, the Vivada Chintamani, which
always maintains the rights of the family in their strictest
form, cites with approval the same text as that which is
relied on by the Mitakshara, as restraining the dealings of
the father with self-acquiied land (p) , But in an earlier

(m) Smriti Chandrika, VIII, §§ 17-20; Madhaviyam, §§ 15, 16; Varada-

rajah, §§4-6. A conflict of opinion exactly similar to that which is
found in the Mitakshara as regards the father’s power of disposal over
movable properly appears in the Viranutrodaya, at p. 6, §9* p. 74 § 17
and p. 16 §30. » •

(n) Mil, I, 5, §§9, 10, 11.

(o) Smriti Chandrika, VIII, §§22-28.

(p) Vivada Chintamani, p. 309 .

Over self-
acquired land.

Mitakshara.

Smriti

Chandrika.

Vivada

Chintamani.

334

fiARLY LAW OF PROPERTY.

[chap. Vll,

The DdvaMidgci.

Attempt to
rei oncile
usage With
lcxt«.

chapter the author slates the unqualified rule. “Self-acquiied
property can be given by its owner at his pleasure” (p 76),
and at p. 229 he repeats the same rule expressly as to a
father.

S 201. When we come to Jimutavahana. wc find that
he arrives at exactly the opposite conclusion to that of the
Mitdkshara. He lelies on the texts of Manu and Devala
which prohibit partition in the father’s lifetime, without his
consent, as showing that the father was the absolute owner
of the property (g). He then giapples with the text — “The
father is master of the gems, pearls, and corals, and of all
other (movable property), but neither the father nor the
grandfather is so of the whole immovable estate.” From
this he argues. (1) That since the grandfather is mentioned,
the text must relate to his effects, viz,, to ancestral property;
(2) That with regard to such propeity, “the father has
authority to make a gift or other similar disposition of all
effects other than land, etc , but not of immovables, a cor-
rody, and chattels (i e , slaves),” (3) That even as to land
^Hhc prohibition is not against a donation or other transfer
of a small pait not incompatible with the support of the
family. For the inseition of the word ‘whole’ would be
unmeaning (if the gift of even a small part were forbidden).
The other texts which foibid a tiansfer by one of several
joint owneis, or even the sale by a father of his own self-
acquisitions without the consent of his sons, he dismisses
with the simple remark, that they only show a moral offence.
“Therefore, since it is denied that a gift or sale should be
made, the piecept is infiinged by making one. Rut the
gift oi tiansfer is not null, for a fact cannot be alteied by a
hundred lexis” (/). He theieforc concludes that “sons have
not a right of owiieiship in the wealth of the living paients,
but in the estate of both, when deceased” (5).

S 262. We have already setm that the doctrine of
J imutdvahana was deiived fiojii a more am lent liaditioti
and is as aulhonlative an exposition of one of the two
ancient schools of Hindu law as Vijnaiiesvara's theoiy of
light by biilh is of the olhei. Probably the opinions of
Manu, Narada and Devala had from eaily times more influ-
ence in Bengal than those of Yajnavalkya. The two schools
must have represented the customary law of different parts

(q) Daya Bhaga, I, §§ 12-34

(r) Daya Bhaga, 11, §§22, 30, DK.S, VT, §§18-20.

(5) Daya Bhaga, I, 30, D.K.S., VI, 18, Kaghunandana, I, 5-14, 26.

t»ARA. 262 .] TWO VIEWS FHoM ANClfeNt TIMES.

335

of India and were probably not the result of a difference in
later legal theory. The exposition in the Mitakshara assert-
ing the right by birth and the exposition in the Daya Bhaga
negativing it, are both largely dialectical. Their conclusions
alone are material; and their long and undisturbed accept-
ance, notwithstanding the subsequent controversy between
the two schools, warrants the inference that each school was
concerned in giving its own legal formulae foi its customary
law, thus establishing, on a firm basis what before was not
quite settled.

While Jimutavahana lays down that the absolute owner-
ship of the father enables him to deal with his ancestral
property as he likes, he also lays down that if he chooses to
distribute it, he must do so upon general principles of
equality, and cannot, even for himself, reserve more than
a double share (f).

Vijnanesvara and his followeis consider that no co-
paicener has such an ascertained share, prior to parti-
tion, as admits of being dealt with by himself, apart
fiom his fellow-sharers (w). They look upon every co-
sharer as having a propiietary right in the whole estate,
subject to a similai right on the part of all the others.
Jimutavahana, on the other hand, denies the existence of
such a geneial right, and says that their property consists
in unascertained portions of the aggregate (v). Hence he
aigues that the text of Vyasa which prohibits sale, gift or
mortgage by one of several coparceners, cannot be taken
literally, for each has a property consisting in the power of
disposal at pleasure (tv).

Accoiding to the Mitakshara, a widow could never inherit
unless her husband had been a sole or a separated owner (:r) .
This lesulted from the nature of his interest in the property.
So long as he was undivided, he had not a share but a right
to obtain a shaie by partition. If he died without exercising
this light, his interest merged, and went to enlarge the pos-
sible shares of the survivors. But according to the Daya
Bhaga, a widow inherits to an issueless husband whether he
dies divided or undivided. This would have been a logical
result of holding that each coparcener during his lifetime

{t) Daya Bhaga, IT, §§ 15-20, 47, 56-82.
iu) Mil., I, 1, 27-29.

(v) Daya Bhaga, XI, 1, § 26.

(w) Daya Bhaga, It, §27; D.K.S., XL
ix) Mil., II, 1, § 30.

Power of
father to
distribute.

Interest of
coparcener
in his share.

Rights of
women.

336

feARLY LAW OF PROPERTY.

[chap. vii.

held a definite though unascertained share. But though
Jimutavahana lelies upon this as an answer to his oppon-
ents, he grounds the right itself upon the texts of early sages.
It is probable that in this respect he may have been really
reviving the older law (y),

(y) Daya Bhaga, XI, 1, §§ 1*26.

CHAPTER VIII.

THE JOINT FAMILY.

§ 263. In discussing the joint family or coparcenary
which forms the subject of this chapter, we shall have to
consider: first, who are its members; secondly, what is
coparcenary property; thirdly, separate property including
self-acquisition; fourthly, the mode in which the joint property
is managed and enjoyed; and fifthly, trading families.

The joint and undivided family is the noimal condition
of Hindu society. An undivided Hindu family is ordinarily
joint not only in estate but in food and worship (a). The
presumption therefore is that the members of a Hindu family
are living in a state of union, unless the contrary is
established. strength of the presumption necessarily

varies in every case. The presumption of union is stronger
in the case of brothers than in the case of cousins, and the
farther you go from the founder of the family, the pre-
sumption becomes weaker and weaker” (6). Even where
separation, either of person or estate, is established,
it can never be more than temporary. The man who
has severed his union with his brotheis, if he has children,
becomes the head of a new joint family, composed of himself
and his children, and their issue. And so property, which
was the self -acquisition of the first owner, as soon as it
descends to his heirs becomes their joint property, with all
the incidents of that condition (c) .

There is no presumption that a family, because it is joint,
possesses joint property f c’ ) . Possession of property is
not under the Mitakshara law a necessary requisite for the
constitution of a joint family. Where persons live together,
joint in food and woiship, it is difficult to conceive of their

(tf) Raghunadha v. Btozo Kishoro (1876) 3 J.A., 154, 191, 1 Mad ,
69, 81; Neclkisto Deb v Beci thunder (1869) 12 M.I.A., 523, 540.

(6) Moro Visvaiuiih v. Ganesh (1873) 10 Bom. Il.C., 144, 468;
lliib pdbbagc lb cited wiili approval Jii YcUappa v. Tippanna (1929)
56 I.A., 13, 19, 53 Bom., 213, 220. Pntkocr v. Mahadeo PcrJiad (1895)
21 I. A., 134, 22 Cdl., 85. Sec dUo Kanhaya Lai v. Devi Dayal A.I.R.,
1936 Lah., 514; Muna Mahto v. Raghunath A.l.R. 1933 Pa!., 153.

(c) Ram Narain Singh v. Pet turn Singh (1873) 11 B.L.R., 397,
20 W.R., 189.

(cl) Rai Shadilal v. Lai Bahadur A.l.R. 1933 P.C., 85, 64 M.L.J.,
298 P.C.; Magan Lai v. Krishna Bibi A.I.R. 1935 All., 303.

24

Division of
subject.

Piesiimption
of union.

Joint

propel ty, not
a prerequisite.

338

THE JOINT FAMILY.

[chap. VllI,

possessing no propeity whatever, such as oidinaiy house-
hold articles which they would enjoy in common. Hindu
law does not requiie that properties of a joint family should
be immovable pioperties or that they should be of appieciable
value (c“).

Its members § 264. It is evident that theie can be no limit to the
number of peisons of whom a Hindu joint family consists,
or to the lemoleness of their descent from the common
ancestor, and consequently to the distance of theii relation-
ship fiom each other. But the Hindu copaicenary constitutes
a much narrower body. The teims, ‘( oparcenary’ and 'co-
paiceners’, though sanctioned by long usage are not happily
applied in the Mitakshara law and their use has been rightly
criticised by Loid Dunedin in Baijnalh Piasad^s case (d).
For, copaicenary in the Mitakshaia law is not identical with
copaicenaiy as understood in English law. when a member
of a joint family dies, “his right accresccs to the other
membeis by survivorship, but if a cojiaicencr dies, his or her
light docs not accresce to the olhci copaiccncis, but goes
to his 01 hei own heirs”. When we speak of a Hindu joint
family as constituting a copaicenaiy, we refer not to the
entire nunibei of persons who can trace from a common
ancestor, and amongst whom no paitition has ever taken
place; wc include only those peisons who, by virtue of
relationship, have the right to enjoy and hold the joint
property, to restrain the acts of each other in respect of it,
to burden it with their debts, and at theii pleasure to cnfoice
its partition. Outside this body there is a fiinge of jieisons
possessing inferior rights such as that of mainlcnaiKe, which
tends to diminish as the result of reforms in Hindu law
by legislation.

§ 265 The Hindu lawyeis always tieal paitition and
inheritance as parts of the same subject (e). Together, they
formed from ancient times, one of the eighteen titles of law.
As Naiada says, where a division of the paternal estate is
instituted by sons, that becomes a topic of litigation, called
by the wise, partition of heritage (/).

(c2) Janakiram v. Nagamony (1926) 49 Mad., 98, 104, 115-6.
id) Baijnath Prasad v. Tej Bah Prasad ( 1921 ) 48 I.A , 195 , 211,
43 All., 228, 243.

(e) The works of Jimutavahana and Madhava are known by
the names Dayabhaga and Daya-vibhaga which mean simply partition of
heritage. See Mit., I, 1, 2-3 where ^Daya is defined as ‘wealth which
becomes the property of another, solely by reason of his relation to the
owner*.

(/) Nar., XIII, 1, Mit., I, 1, 5, Vyav. Mayukha, IV, iii, 1.

PAHA. 265.]

SURVIVORSHIP.

339

Apart from the recent Hindu Women’s Rights to Pro-
perty Act, 1937, there is in the Mitakshaia law no such thing
as succession, properly so called, in an undivided Hindu
family. A Hindu joint family consists of males and
females; daughteis horn in the family are members of it
till their marriage and women married into the family are
equally members of the joint family (g). The whole body
of such a family, consisting of males and females, consti-
tutes a sort of corporation, some of the members of which
are coparceiieis, that is, persons who on partition would be
entitled to demand a share, while otheis are only entitled
to maintenance. Each person is simply entitled to reside
and be maintained m the family house; when he dies his
claims cease, and as others aie born their claims arise. But
the claims of each spring from the mere fact of their entrance
into the family, not from their taking the place of any
particular individual. Deaths may enlarge the beneficial
interest of the survivors, by diminishing the number who
have a claim upon the common fund, just as births may
diminish their interests by increasing the number of claim-
ants. The joint family property continues to devolve upon
the members of the family for the time being by survivorship
and not by succession.

For, according to the piinciples of Hindu law, there is
coparceneiship between the different members of a united
family and suivivorship following upon it. Theie is com-
munity of inteicsl and unity of possession between all the
members and upon the death of any one of them, the otheis
take by survivoiship that in which they had during the
deceased’s lilctinie a common iiitciesl and a common
possession (h) , The light ol suivivoiship lesls upon the
text of Naiada and is recognised in the Mitakshara (t).

( 5 :) Vedathanni v. Commr of Incometax (1933) 56 Mad., 1 , 4, 5;
Coninir, of Incometax v. Lakshminarayan (1935) 59 Bom., 618, 621,
624, bce Kalyanji Vithaldab v. /. T, Commr,, Bengal (1936 ) 64 I.A., 28,
38, 39, 1 1937 J 1 Cal., 653; Raghunada v. Brozo Kishoro (1874) 1 Mid,
59, 81 P.C.

(A) Katama Nathiar v. Raja of Shivaganga (1863) 9 M.I.A., 539,
611; Subramanya Pandian v. Sivasubramania Pillai (1894) 17 Mad.,
316, 328 (evidently the reference to coparceners as tenants in common
is a slip).

U) Mit., II, 1 , 7 quoting Nar. XIII, 25; II, i, 30 » II, ix, 4;
Subramanya Pandian v. Sivasubramania Pillai (1894) 17 Mad., 316,
330. The Arthasastra of Kautilya clearly lays down the rule of
survivorship. “If a man has no male issue, his own brothers or
persons who have been living with him shall take possession of his
property, and in their absence, his daughters shall liave his property”.
Ill, 5, 8 (Di. Jolly’s cdii.), Shainasastii, 197; Saivcidhikdri, 2ndcdii.,655.

do not
succeed to
each other.

Rights arise
by biith

Survivorship.

340

THE JOINT FAMILY.

[chap. Vllt,

Now repealed
by Act.

Rjjihts of
male memoers
lie dbcer-
tained by
partition.

Narada says: “If among several brothers, one childless
should die or become a religious ascetic, the others shall
divide his property, excepting the stridhana” (y). In other
woids, survivoiship consists in the exclusion of the widows
and other heirs of the coparcener from succeeding to his
undivided interest in the copaicenaiy property.

Now, however, the Hindu Women’s Rights to Piopeity
Act, 1937, makes a serious inioad upon this lule of suivivoi-
ship* for the interests of male copaiteneis in a Mitakshaia
family devolve, on then death, upon then widows as for a
Hindu woman’s estate whuh they aie entitled to work out
by paitilion I'he male issue, if any, of the' deceased ( o-
])tuceiiei, howc'vei, (ontinue to KMuain (opaKimeis with the
olhci male copau eiieis. goxeined 1)\ the iiile of sui\ ivoislnp.
Hut if any of them h'avi's a widow, slu‘ will in hei tuin
inU'icepl lh(' siictession of collaleials by suivivoiship which
IS possible hereaftci only whcie a copaicertci dies leaving
neilhci widow noi male issue (J^592)

S 265 A. The lights of male members, whu’h aiise bv
birth are only ascei tamed on partition, for, no individual
member of a family, whilst it remains undivided, can predicate
of the joint undivided piopeity that he has any definite
share (A). The inteiesL of the member in the undivided pro-
perty is not individual piopeity but is a fluctuating intciest
liable to be diminished by biiths oi iiici eased by deaths in
the family (/) Foi instance, suppose a family to consist
only of A and his sons B and C, on a paitition each would
take one-thiid. But if I) was boin while the family remained
joint, each would take one-fourth Supposing the family

\

i

B C

I

b F \

iT I

still to lemain undnided, on the death of A, the possible
shares of the ihiee sons would be enlarged to one-thiid;

D

G

(y) Ndr , XIII, 25, Viraniil , IV, 'I If, 128), Mdclana

Paiijata, SrlhiiV cj , 511

ik) Appovier V. Kamastihha 4i\an <1806) 11 MIA, 75 89.

(/) Sudarsannni Maistri v Narasinihulii (1902) 25 Mad., U9, 151,
156, GharibuUah v. KholaL Singh (1903) 30 I.A., 165, 25 All, 407,
416

PARAS. 265A-266.]

COPARCENARY.

341

and if B were subsequently to die without issue, they would
again be enlarged to one-half. As C and D married, their Fluctuating
sons E, F and G would enter into the family and acquire an interest,
interest in the property. But that interest again would be
a shifting interest, depending on the state of the family. If
C were to die, leaving only two sons E and F, and they
claimed a partition, each would take one-half of one-half.

But if X had previously been born, each would only take
one-third of one-half. If they put off their claim for a.
division till D, G, H and I had all died, they would each
take one-third of the whole. The statement that in an un-
divided family each member transmits to his male issue irn)
his own share in the joint property, and that such issue take
pet capita inter se, but per stirpes as regards the male issue
of other members is only a statement of what would
be their rights on a partition. But until a partition, their
rights consist merely in a common enjoyment of the common
property and the right to restrain alienations made by their
direct ancestors (/i).

§ 266. There is a most important distinction between a The co-
Mitakshara coparcenary and the geneial body of the undivided parcenary
family. Suppose the property to have all descended from one
ancestor, who is still alive, with five generations of des-
cendants. It by no means follows that on a partition every
one of these five generations will be entitled to a share.

And if the common ancestor dies, so that the property
descends a step, it by no means follows that it will go by
survivorship to all these generations. It may go to the
representatives of one or more branches, or even by inherit-
ance to the heirs of the survivor of several branches, to the
total exclusion of the representatives of other branches. The
question in each case will be, who are the persons who have
taken an interest in the property by birth. The answer will
be, that they are the three generations next to the
owner in unbroken male descent. Therefore, if a man
has living sons, grandsons, and great-grandsons, all

(m) The term ‘male issue’ will be used throughout this work
unless otherwise indicated as embracing son, grandson and great-grand-
son.

in) See this subject discussed, Appovier v. Rama Subhayan (1866)
11 75, 8 W.R. (P.C.), 1; Sadabart Prasad v. Foolbash Koer

(1869) 3 B.L.R (FB), 31, 14 WR., 340; Ram Narain v. Pertum
Singh (1873) 20 W.R., 189, 11 B.L.R, 397; Rajnarain v Heeralal
(1880) 5 Cal., 142; Bhimul Doss v. Choonee tail (1877) 2 Cal., 397;
Dibi Prashad v. Thakur Dial (1875) 1 All, 105. Rao Gorain v. Teza
Oorain (1870) 4 B.L.R., Appx., 90; Sudarsanam v. Narasimhulu
(1902) 25 Mad., 149.

342

THE JOINT FAMILY.

fCHAP. VIII,

of these constitute a single coparcenary with himself (o) .
Every one of these descendants is entitled to offer the funeral
cake to him, and every one of them obtains by birth
an interest in his property. But the son of one of the great-
grandsons would not offer the cake to him, and also is
out of the coparcenary, so long as the common ancestor is
alive ip). But while fresh links are continually being added
to the chain of descendants by birth, so earlier links are being
constantly removed from the upper end of the chain by death.
As each fiesh inembei takes a share, his descendants to the
third generation below him take an interest in that share by
birth. So the coparcenary may go on widening and extend-
ing, as long as its members include agnates descended from
a common ancestor, irrespective of their degrees of agnatic
relationship to each other (^). But this is always subject
to the condition that no pci son who claims to take a share
is more than three steps removed from a direct ascendant
who has taken a share Whenever a break of more than
thiee degiees occuis between any holder of pioperty and the

(o) Dr. Jolly (TLL, 170-171) thinks that the Mitakshara and
the Madana Parijala intentionally confine the ropaicenaiy to the son
and the grandson and exclude the great-grandson In this, he
follows Jiinutavahana's criticism in the Dayahhaga (XI, i, 35)
that “&till there is no separate text concerning the great-giand-
son” The undoubted right of the great-grandson as a member of the
coparcenary, admitted hy Manu (IX, 186), Baudhayana (I, 5, 11, 9),
and Kdtyayana (cited in the Smritichandrika, VI IT, 6) ( ould not have
been negatived liv the Mitakshaia On the othiT hand, the Mitakshara
on Ydjn , II, 50 (Setlur’s edn , 401-408) and the elaborate explanation
of the Viiamitrodaya (111, 1, 11, Setliir, II, 391, ,192) are conclusive
m favour of the great-grandson's im liision Tlie Smritichandrika
citing a text of Devala, “Sages declare partition of heritable property
to be co-ordinate with the gifts of funeral cakes”, concludes that
partition shall be allowed as fai as the great-grandson of the deceased
owner Vlll, 11-11 The V^avahara Mayukha also says “strictly
speaking, the word ‘grandfather’ is indicative of a class and not ol
tlie grandfatlur alone” (Mandlik, p 3.1) The explanation of the Vira-
mitrodaya receives further support from the Arthasastra (III, 5, 3,
Dr Jolly’s edn, Shamasastii, 197) which says that sons or grandsons
till tin fourth gemiation from the first parent shall also have pres-
cribed shares Mr Ameei Ah says “It is beyond question that under
the law of the Mitakshara, the great-grandson is as much a member
of the joint family as a son or grandson” Masitullah v. Damodar
Prasad (1926) 53 I A , 204, 208, 48 All, 518, 522, Buddha Singh v
Laltu Singh (1915) 42 I A., 208, 221, 37 All, 604

(p) This IS cited with approval by the Judicial Committee in
Masitullah v Damodar Prasad (1926) 53 I A , 204, 209, 48 All., 518,
523; the expression in Baudhayana is ^avihhaktadaya^ (Baudh , I, 5,
II, 9, S.B E , Vol XIV, p 178) which, according to Madhava cited
hy Mr. Ghose, means ‘undivided body’ (H L., I, 192) ; according to
Dr Jha, it means ‘coparceners’ (HLS, 11, 510)

{q) Yenumula v Ramandora (1870) 6 MHCR, 94, Moro

Vishvanath v Ganesh (1871) 10 Bom If C., 414, Tirumal Rao Y.

Rangadam (1912) 21 M,b ] , 79,

PARAS. 266-267.] LIMITS OF COPARCENARY.

343

person who claims to take next after that holder, the line
ceases in that direction, and survivorship enures only to
those collaterals and descendants who are within the limit
of three degrees (r) . This was laid down in two cases in
Bombay and Madras.

§ 267. In the former case the claim to partition was
resisted, on the ground that the plaintiff was beyond the
fourth degree from the acquirer of the property in dispute,
the defendant being within that degree. It was argued that
the analogy of the law of inheritance prevented a lineal
descendant, beyond the great-grandsons, from claiming
partition from those legally in possession as descendants
from the original sole owner of the family property or
any part of it ( 5 ). West, J., said: “The Hindu law
does not contemplate a partition as absolutely necessaiy
at any stage of the descent from a common ancestor; yet
the result of tHfe construction pressed on us would be to force
the great-grandson in every case to divide from his co-
parceners, unless he desired his own offspring to be left
destitute. Where two great-grandsons lived together as a
united family, the son of each would, according to the
Mitakshara law, acquire by birth a co-ownership with his
father in the ancestral estate; yet if the argument is sound
this co-ownership would pass altogether from the son of A
or B, as either happened to die before the other. If a
coparcener should die, leaving no nearer descendant than a
great-great-grandson, then the latter would no doubt be
excluded at once from inheritance and from partition by
any nearer heirs of the deceased, as, for instance, brothers

(r) This sentence is criticised by Benson and Sundara Aiyar, JJ ,
m Tirumal Rao v. Rangadani (1912) 23 M.LJ., 79, 94, on the ground
that “as soon as eacli descendant is horn, he takes a share in what
IS already vested in his father and he has not got to claim it as the
share of a person more than three degrees removed from himself.
When the son, grandson and great-grandson of a coparcener A die
leaving a son of the great-grandson, the shares vested also in them
have already been vested in the son of the great-grandson and do not
return completely to their ancestor A”. This is only a dictum for,
admittedly there was no gap of more than three degrees in that case.
It overlooks (1) that the right by birth meaning the right to compel
a partition is not endless but is in itself limited by the rule of three
degrees so as to prevent one from enforcing a partition against his
great-great-grandfather and (2) that the passage in the text follows
the views of West and Nanabhai Haridas, JJ., in 10 Bom. H.C., 444,
and of the Madras High Court in 6 M.H.C.R., 94; see Smritichandrika,
VIII, 8 to 16. In the Vyav. Mayukha, IV, 1, 3, the expression “wealth
received from the great-grandfather, etc. (odt)” is not confined to
three degrees; Mr. Mandlik however thinks that the term Wi' is “put
in inadvertently” (p. 33).

(s) Moro Vishvamth v, Ganesh (1873) 10 Bom, H,C.| 444, 449,

Coparcenary
not limited
to three
degrees from
common
ancestor.

3U

THE JOINT FAMILY.

[chap. VIII,

and their sons; but where iheie has not been such an interval
as to cause a break in the couise of lineal succession, neither
has there been an extingui^shincnt of the right to a paitition
of the property in which the deceased was a co-sharer in
actual possession and enjoyment (/) . Each descendant in
succession becomes co-owner with his father of the latter’s
share, and there is never such a gap in the series as to pre-
vent the next fiom fully representing the preceding one in
the succession ” The same principles were illustrated in
detail by Mr. Justice Nanabhai Haridas. He said (u) , “Take,
for instance, the following case A, the original owner of
the property in dispute, dies, leaving a son B and a grand-
son C, both members of an unduided family B dies, leaving
C and D, son and grandson respectiveh ; and C dies, leaving
a son D and two grandsons by him E and F. No partition
of the family property has taken place, and D, E and F are
living in a state of union. Can E and F conpipel D to make

A

I

B

I

C

I

D

E 'f

over to them their share of the ancestral property? Accord-
ing to the law prevailing on this side of India they can, sons
being equally interested with their father in ancestral pro-
perty (i;). In the same way, suppose B and C die, leaving
A and D members of an undivided family, and then A dies,
whereupon the whole of this property devolves, upon D,

Dl

who thereafter has two
them, can likewise sue

A

I

B

I

C

I

D

I

E F

I

G

sons, E and F They, or either of
their father D for partition of the

(t) See per Jagannatha, Dig., II, 256-263, 479.

(u) (1873) 10 Bom. H.C., 444, 463.

(v) 1 Stra. H.L., 177; 2 ibid,, 316; Mitakshara, I, i, 27; I, v, 3, 5,
8. 11: V. May., IV, iv, 13.

PARAS. 267 - 268 .] LIMITS OF COPARCENARY.

345

said property, it being ancestral. Now suppol^e B and C
die, leaving A, D and D^, members of an undivided family,
after which A dies, whereupon the whole of his property
devolves upon D and jointly, and that D thereafter has
two sons, E and F, leaving whom D dies. A suit against
for partition of the joint ancestral property of the family
would be perfectly open to E and F, or even to G and F,
if E died before the suit. It would be a suit against
by a deceased brother’s sons or son and grandson {w) . But
E and F are both fifth, and G sixth in descent from the
original owner of the property, whereas D and are only
fourth. Suppose, however, that A dies after D leaving a
great-giandson, and the two sons of D, E and F. In this
case E and F could not sue for partition of property
descending from A, because it is inherited by alone, since
E and F being sons of a great-grandson, are excluded by
A’s surviving •great-grandson, the right of representation
extending no further (%). The rule, then, which I deduce
from the authorities on this subject is, not that a partition
cannot be demanded by one more than four degrees removed
from the acquirer or original owner of the property sought
to be divided, but that it cannot be demanded by one more
than four degrees removed from the last owner, however

remote he may be from the original owner thereof.”

§ 268. This principle was also affirmed by the Madras
High Court, and its application put to a more violent test.
The question was as to the right of succession to an impartible
zemindary. The original owner and common ancestor of
the claimant was A. The zemindary had descended
throughout in the line of H, and was last held by N, who

died without issue, leaving a widow, the defendant. The

A

B

!

C

I

D

I

K

H

I

J

I

K

I

L

G, Plaintiff

defendant,

widow.

plaintiff was G, who was admittedly the nearest male of

iw) V. May., IV, iv. 21.

(x) See Jagannatha’s Comment, on text, ccclxx ; Dig., II, 479; I
Nort.LC.. 292; Stra.Man., 323; 2 Stra.H.L.. 327.

But limited
to three
degrees from
the last
owner.

Principle
applied to
impartible
Zemindary.

346

THE JOINT FAMII.Y.

[chap. VIII,

Definition of
coparceners

Obstructed
and un*
obstructed
property.

kin to N. The family was undivided It was contended
that though an undivided coparcener would take before the
widow, coparcenership can only exist between kindred who
are near sapindas, that is, not beyond the fourth degree and
consequently that plaintiff was not a coheir of the deceased.
The Court held that the zemindary, though impartible, was
still coparcenary property, and that the members of the
undivided family acquired the same right to it by birth, as
they would have done to any other property, subject only to
the limitation of the enjoyment to one. Then as to who were
coparceners, they said. “It appears to us equally certain
that the limit of the co-heirs must be held to include un-
divided collatcial lelalions, who are descendants in the
male line of one who was a coparcener with an ancestor of
the last possessor. For, in the undivided coparcenary in-
terest which vested in such coparcener, his near sapindas
were co-heirs, and when on his death, the interest vested in
his sons, or son, or other near sapinda in the male line,
the near sapindas of such descendants or descendant became
in like manner co-heirs with them or him, and so on, the
co-heirship became extended through the new sapindas down
to the last descendant. Obviously, therefore, as long as the
<itatus of non -division continues, the members of the family
who have, in this way, succeeded to a coparcenary interest,
are co-heirs with their kindred who possess the other un-
divided interests of the entire estate”. The court, therefore,
held that the plaintiff, as undivided coparcener, would suc-
ceed before the widow (y), though he. as well as the
defendant’s husband were sixth in descent from the common
ancestor.

^ 269 On the principle that the son, giandson and great-
grandson alone have vested lights by birth in the pioperty
of the father, grandfather and great-grandfather and not
other relations, Vijnanesvara and the writers who follow
him divide heritage [daya) into two classes known as
Apratibamlha and Sapratibandha, tcims which have been
translated, not very happily, unobstructed and obstructed^
or liable to obstruction The terms are fully explained (z)
in the Mitakshara • “The wealth of the fathei or of the
paternal grandfather becomes the property of his sons or of
his grandsons, in right of their being his sons or his grand-

(y) Yenumula v Ramandora (1870) 6 Mad. H.C , 94, 106 See
also in Bengal, Girwurdharee v Kulahul 4 S.D., 9 (12), where pro-
perty was divided among persons four, five, and six degrees removed
from the common ancestor.

(«) Bai Parson v. Bai Somli (1912) 36 Bom., 424.

PARA. 269.]

UNOBSTRUCTED HERITAGE.

347

sons; and that is an inheritance not liable to obstruction.
But property devolves on parents or uncles, brothers, or
the rest, upon the demise of the owner, if there be no male
issue; and thus the actual existence of a son, and the survival
of the owner are impediments to the succession; and on their
ceasing, the property devolves on the successor in right of
his being uncle or brother. This is an inheritance subject to
obstruction” (a). The unobstructed, or rather the un-
obstructible, estate is that in which the future heir has already
an interest by the mere fact of his existence. If he lives
long enough he must necessarily succeed to the inheritance,
unless his rights are defeated by alienation or devise,
and if he dies, his rights will pass on to his son, unless he is
himself in the last rank of near sapindas, in which rase his
son is out of the line of unobstructed heirs. On the other
hand, the person who is next in apparent succession to an
obstructed, or •rather an obstructible estate, may at any
moment find himself cut out by the interposition of a prior
heir, as for instance a son, widow or the like. His rights
will accrue for the first time at the death of the actual holder,
and will be judged of according to the existing slate of the
family at that time. Any nearer heir who may then be in
existence will completely exclude him; and if he should die
before the succession opens, even though he would have suc-
ceeded, had he survived, his heirs will not lake at all, unless
they happen themselves to be the next heirs to the deceased.
In other words, he cannot transmit to others rights
which had not arisen in himself (6). Nor can he by
any contract bar the rights of those who, after his death,
aie the actual reversioners when the succession opens (c).
On the same principles, property which is liable to obstruc-
tion {sapratihandha) and which once vested in the heir in
existence at the time the inheritance opens, is not affected
by the subsequent birth of a person who would have taken

(a) Mil.. I, 1, §2, 3, Vjramit., I, 5, V. May., IV, 2, §2 (Setliir,
II, 277). See per curiam, Nund Coomar tail v. Ruzziooddeen
(1873) 10 B.L.R., 191; Debt Farshad v. Thakur Dial (1875) 1 All.,
105 (F.B.), 112 These terms are not used by the writers of the
Bengal or Mithila School. V. N. Mandlik, 359; Jolly, TL.L, 176.
Explaining the text of Gautama (X, 39), “An owner is by inheritance,
purchase, partition, seizure or finding”, Vijnanesvara says that “un-
obstructed heritage is here denominated inheritance (riktha) ; parti-
tion (samvibhaga) intends heritage subject to obstruction” (Mit. I,
1, 13). See as to this, Viramit., Setliir, II, 280; Vyav. Mayiikha,
IV, 1, 2 (Gharpure’s trans., 44).

(5) Bapu Anaji v. Ratnoji (1897) 21 Bom., 319.

(c) Bahadur Singh v. Mohar Singh (1902) 29 LA., I, 24 All., 94.

348

Women
not copar-
ceners.

Their position
under the
Act.

Son’s right
by birth in
father’s
property.

THK JOINT FAMILY. [CHAP. VIII,

along with him, or in prefeience to him, if in existence when
the succession opened (d).

It is obvious that, on the twin principles of a right vested
by birth in the male issue only and of unobstructed heritage,
the conception of a Mitakshara coparcenary is a common
male ancestor with his lineal descendants in the male line,
and female members of the family who have no vested light
by birth and come in only as hens to obstructed heritage
{sapratihandha daya) cannot be coparceners with the male
members, though, along with the males, they are members of
the undivided family as a coipoiate body (e).

270. The position however has now become compli-
cated in consequence of rights confened upon widows of
coparceners in a Mitakshara joint family by the recent Hindu
Women’s Rights to Property Act, 1937 The undivided
interest of a coparcener who leaves a widow* does not go bv
survivorship to his male issue or to the other coparceners on
his death, but it goes to her as his heir for the limited estate
of a Hindu woman. While she cannot be in the strict sense a
coparcener with the other membeis, her position will be
analogous to that of a member of an undivided family under
the Dayabhaga law with this possible difference that, as she
is only to have the ‘same interest’ as her husband himself
had, the share to which she will be entitled at a partition
may be liable to the same fluctuation caused by changes in
the family as if she occupied the place of her husband or as
the share of any member of an undivided Mitakshara
family (§ 592) (/).

§ 271. It follows from the conception of unobstructed
heritage [apratibandhadaya) and of the sons’ right vested by
birth that an undivided son takes not only the paternal grand-
father’s property but also the property acquired by his

id) Natasimha v. Virabadra (1894) 17 Mad, 287 (sifter’s son)
distinguishing Krishna v Sami (1886) 9 Mad, 64 as relating to
unobstructed property

(c) Sudarsana Maistri v Naravmhuhi (1902) 2S Mad, 149, 154,
Punna Bibee v. Radhakissendas (1904) 31 Cal, 476, Hira Singh v
Mt Manglan (1928) 9 Lab, 324, 330, Srimati Sabitri v Mrs F 4
Savi (1933) 12 Pat , 359, see ante § 265 and note ig) there

(/) C/, Rangaswami v Krishnayyan (1891) 14 Mad, 408,

418, 419 FB and Sathapathiar v. Sivanarayana (1933) 56 Mad., 534
on the general principle, though the cases themselves, dealing with the
quantum of interest carved out by an alienation for value cannot be
regarded on that point as good law in the face of the Full Bench
decisions in Ayyagari V enkataramayya v. Ayyagari Ramayya (1902)
25 Mad, 690 F.B. and in Chinnu Pillai v. Kalimuthu (1911) 35 Mad.,
47, 56, 62 F.B.; see post Ch. XIV.

PARA. 271.]

RIGHT BY BljftTH.

349

father, not strictly by inheritance but by virtue of his right
by birth and only as unobstructed heritage (apratibandha-
daya ) .

For, there arc only two divisions of inheritance,
obstructed and unobstiucted. The male issue do not suc-
ceed by inheritance to unobstructed property; and the texts
relating to obstructed heritage do not refer to sons but only
regulate succession to the property of a man who dies son-
less. The Mitakshara and the other authorities following it
are quite explicit on the matter. The very definition of
unobstiucted heritage makes no distinction between the
propel ty of the father and the property of the grandfather
so fdi as the son’s light to take it as unobstiucted heiilagc is
( oncerned (g). That the light vested by biith in the son e\-
lends to propeily acquiied by the father is unequivocally stated
in the Mitakshara (I, 1, 23-27, 33). “Therefore it is a settled
point that property in the paternal or the grand-paternal
estate is by birth”. The distinction between the son’s equal
right by biith in the grandfather’s property and his unequal
light by birth in the father’s propel ty is fully brought out by
Vijnanesvara in I, v, 5, 9 & 10. He states: “Consequently, the
difference is this: although he have a right by birth in his
father’s and his grandfather’s property; still, since he is
dependent on his father in regaid to the paternal estate and
since the father has a predominant interest as it was acquired
by himself, the son must acquiesce in the father’s disposal
of his own acquiied property; but since both have indis-
criminately a right in the grandfather’s estate, the son has a
power of interdiction”. The Smritichandrika is quite precise
and dehnite on the point. “In the case of father’s property,
the ownership of father and son is unequal . . . . ; in the case
of grandfather’s property, the ownership {svannern) and also
independent power {svatantriem) are both equal in the father
and son. Whereas in the case of father’s property, while
he IS alive and free from defect, he (father) alone possesses
an independent power (siatanttiem) and not the son” (/i).
The Parasara Madhaviya, the Sarasvati Vilasa, the Vyava-
hara Mayukha and the Viramitrodaya lake the same view fi).

{;?) Mil., t, 1, 3; ante §§ 25B, 2.W.

(A) Snnitioliaiuiiika. Vtll, 2J. p 100 < Kj isiiiuiswainl l>er*s Uans.).

U) Mailhaviya, paia I (pp .'S & 6) , Saia^vati Vilasa, paras 459,
460; Vyav. Mayukha, IV, 2, 2; Viiamit., I, 25 (Stllm, II, 285);
P. N. Sen, H.J., 131; K. L. Saikar, Mimamsa, 450.

350

Equal right
in grand-
father’s
property.

niE JOINT FAMlLV. [CIIAP. Vlll,

§ 272. The result therefore is that while the son has a
right by birth both in his falhei’s and in his giandfather’s
properly, a distinction under a special text makes the right
of the son and the fathei equa] in the property of the grand-
fathei (/). That text is. “the ownership of the father and the
son is the same in land, a corrody or wealth received from the
grandfather” {k). But in the case of father’s property the
ownership of the son is unequal (/), for the father has an
independent power over it or a predominant interest (rn) ,
The son’s right by birth does not therefore extend to his
enforcing a pailition or interdicting an alienation of his
father’s pioperty. The right however remains a real birth
right, though dormant and enables the son to succeed to the
pioperty by survivorship or as apiatihandhadaya

It was accordingly held m Nana Tawker v. Ramachundra
(n) (1) that an undivided son takes his father’s separate

property by survivorship; and (2) that an* undivided son
takes the self-acquired property of the father to the exclusion
of the divided son. Dissenting fiom the first proposition, a
Full Bench of the Madias High Couit has decided that
an undivided son lakes the self-acquired property of his
father by inhciitance and not by survivorship (o), Kumara-
swami Saslii, J., expressing the opinion that ancestral
property is coextensive with the objects of apraliban-
dhadaya oi unobstructed heritage (/>). This view is opposed
to the clear statements in the Mitakshaia and in the other works
bearing on the point which expressly refer to the son’s right
in the father’s wealth as unobstructed heritage. The miscon-
ception was evidently due to the view based on the obsei-

{]) Mil , I, 1, 33, I, V, 2, 3, 5

(A) Yajn., II, 121.

(/) Mil , I, 1, 27, Smritichandnka, VIII, 21-24

im) ]Mit , I, 5, 10

{ji) Nana Tatvher v Hamadiandra (1909) 32 xMad , 377 following
Fa/arappa v. yellappa (1898) 22 Bom., 101.

(o) oiravan Chettiar v Sriniva^achariar (1921) 41 IVIad , 499
FB In VenLateswara Pattar v Mankay animal (1935) 69 M.L.J., 410,
AIR 1935 Mad , 775, 778, Varadachariar, I , referring to the three
principles of succession obtaining amongst the three groups of heirs
under the Mitakshara law observes, “In the first (i e., the succession
of sons) It is by survivorship even in respect of the father’s self-
acquired property according to the scheme of the Mitakshara”.

(p) (1921) 44 Mad., 499, 507 FB., supra; The dictum in Muddun
Gopal v. Ram Buksh (1863) 6 W.R., 71, that the right of the son in
the self-acquired property of the father is an imperfect right incapable
of being enforced at law was made in connection with the father’s
powrr to sell immovable property acquired by him and does not touch
tlic question of succession.

PAKAS. 272-273.] IN PATHER^S PROPERTY.

351

vation in Sartaj Kuaris case (q) relating to impartible
estates that there can be no right by birth where there
is no right to partition. But the right by birth in
the father’s property is expressly stated by all the
Sanskrit authorities; and the observation in Sartaj
KuarVs case has itself no force after the reiterated explana-
tion of it in subsequent cases that the existence of
survivorship is quite consistent with the dominant interest
possessed by the holder of an impartible estate and
with the absence of a right to partition or to inteidict
an alienation on the part of the junior membeis.
As Sir Dinshaw Mulla puts it m Shibaptasad v. Ptayag
Kumari, though the other rights which a coparcener acquiies
by birth in impartible piopeity no longer exist, the birth
right of the senior membei to take by suivivorship still
remains (rj. So, too, m the case of ordinary partible pro-
perty ac(juired by a father, the son’s right by birth exists even
though the other rights of a coparcener, such as the right to
enfoice a paitition oi to interdict an alienation, cannot, owing
to the powei of contiol and the dominant interest of the
falhci, coexist (5}. The light by birth in such pioperty is
not a nicie spe^ successionis but it can be 1 enounced or
suirendered so that, as has been held, a divided son loses his
light of inheiilance to it (f)*

§ 273. On principle, the position taken up in the
Mitakshara that the son has a right by birth in piopeily
acquired by the father is unassailable. The grandson’s right
by birth in the grandfather’s pioperty is only a logical lesult
ol the son’s right by birth in the father’s piopeity. For,
if the son has no right by birth in his father’s properly, his
son bom befoie the grandfather’s death can have no right
by biilh 111 the grandf athei ’s property. How then does he
acquire by biith a right in the grandfather’s property after
it has descended to the father? If neither sons nor grand-
sons boin before the grandf athei ’s death have any right by
birth in the acquirer’s properly, they cannot acquiie by
birth any equal right once the grandf athei ’s property has

{q) Sana] Kuan v. Deoraj Kuan (1887) 15 I.A., 51, 10 AIL, 272.

(r) (1932) 59 I.A., 331, 345, 59 Cal., 1399.

(s) (1932) 59 I.A., 331, 345 supra; CoHector of Gorakpur v. Ram
Sunder Mai (1934) 61 LA., 286, 303, 304, 56 AIL, 468. Regarding
this matter Varadachariar, J., explains in Venkateswara Pattar v.
Mankayammal 69 M.L.J., 410 how even when there is no right to
partition, there can be a right to survivorship.

(^) Narasimhan v. Narasimhan (1932) 55 Mad., 577, following
Nana Tawker v. Ramachandra (1909) 32 Mad., 377 and the opinion
of Oldheld, J., in Vairavan Chettiar v, Srinivasackariar (1921) 44
Mad., 499, 504 F.B.

352

THE JOINT FAMILY.

[chap VllI,

No coparce-
nary by
agreement.

descended. Again, as Nilakantha says, “This cannot be
construed to mean that the cause of the ownership is found
in the grandfathei’s death, and not in the birth of a son.
For, in that case, such owneiship would be wanting in case
of a grandson not bom up to the time of his (the grand-
father’s) death” (t^). In fact, the very light of repiesent-
atioii IS bound up with it.

The erior lies in overlooking the diffeicnce between
the son’s right by birth and the son’s equal ownership with
his father in the giandfathcFs pro])cily under a special
text (a). The Judicial Committee in Venkayanima v.
Venkahamaiiayanima {v) pointed out that wheie the sons
succeed to the self-acquiied piopcily ol I he falhei, their
inheritance is unolistiucted and they take it 1)\ sui\ ivoiship.
In Md. Husain Khan \ Babu Kishva^ the Pii\y Council
held that the son acquires b> birth an inleiest jointly with,
and equal to that of the father in the propeity of the paternal
grandfather and not in that of the mateinal grandfather
which came to his father. All that it decided, as to which
there can be no doubt, was that the lather had absolute
powers of alienation in such propeity as against his son [iv) .
It does not touch the question whether the unequal right by
birth which a son has in his father’s propeity enables him
to lake that propeity if undisposed of, by survivoiship, as in
the case of an impartible estate. So too, the dictum ol Sir
George Rankin in Kalyanji V ithaldas 1 T. Commissioner,
Bengal (a) that the income of a man from his self-acquired
property cannot be regarded as the joint income of father
and son does not alfect the question of succession and means
only that self-acquired piopeity is not copaiccnary propeity
in which the son has equal light.

§ 271. A joint family and its copaicenary with all its
incidents aie puiely a cieature of Hindu law and cannot be
created by act of parties for the fundamental principle of the
joint family is the tie of sapindaship arising by biith,
mariiage or adoption (y)

(t^) Mayukha, IV, 1, 3, Mandlik, 33.

(m) See Viramit., II, i, 23a; ‘upon ihe authority of the texts’.
Setlur II. 342.

(v) Venkayamma v V enkataramanayyamma (1902) 29 LA., 156,
25 Mad., 678, 687; Maditalappa v. Subbappa [1937] Bom., 906, Apaji
V. Ramachandra (1892) 16 Bom., 29, 56, F.B , per Tclang, J.

iw) (1937) 64 T.A., 250, [19371 All, 655, A.I.R., 1937, P.C., 233.

(x) (1937) 64 LA, 28, [1937] 1 Cal., 653.

(y) Sudarsana Maistri v Narasimhulu (1902) 25 Mad, 149, 154,
Karsondas Dharamsey v. Gangabai (1908) 32 Bom., 479, Myna Baee
V. Ootarani (1861) 8 M.LA.,400, Packiribawrny v. Doraisawmy (1931)
9 Rang., 266.

1>ARA. 275.]

ANCESTRAL PROPfiRtV.

§ 275. The second question is as to the coparcenary
property. The first species of coparcenary property is that
which is known as ancestral property (z ) . That term, in its
technical sense, is applied to property which descends upon
one person m such a manner that his issue acquire certain
rights in it as against him («). For instance, if a father under
Mitakshara law is attempting to dispose of property, we
inquire whether it is ancestral property. The answer to this
question is that property is ancestral property in the father’s
hands if it has been inherited by him as unobstructed property,
that it is not ancestral if it has been inherited by the father
as obstructed property. The reason of this distinction is that,
in the former case, the father had an effective vested interest
in the properly, before the inheritance fell in, and therefore
his own issue acquired by birth a similar interest in that intei-
est. Hence, when the property actually devolved upon him, he
took it subject to the interest they had already acquired. But in
the latter case, the fathei had no such interest in the property,
before the descent took place; therefore, when that event
occuired, he received the property free of all claims upon it
by his issue, and d fortiori, by any other person. Hence all
pioperty which a man inherits from a direct male ancestor,
not exceeding three degrees higher than himself, is ancestral
property, and is at once held by himself in coparcenary with
his own male issue. But where he has inherited from a
collateral relation, as for instance from a brother, nephew^
cousin or uncle, it is not ancestial propel ty in his hands in
relation to his male issue (6) ; consequently his sons have no
equal rights as coparceners. They cannot restrain him in
dealing with it, nor compel him to give them a share of
it. On the same principle propeity, which a man inherits

( 2 ) As? to the (liffeienco belwren joint property, joint family pro-
perly, and ancesstral properly, ^ee Kar^omlab v. Gangabai (1908 ) 32
Bom., 479.

(«) Property devised by a man to his widow and his son does not
become joint property, with its attributes of survivorship and mutual
restraint on alienation. Jogeswar Narain v. Ramchiind Dutt (1896) 23
I.A , 37; 23 Cal., 670, overruling Vydinada v. Nagammal (1888) 11
]\Iad., 258. Nor property devised to his two daughters, Gopi \. Musarri'
mat Jaldhara (1911) 33 All., 41. Nor property settled on husband
and wife, the interest of which was payable to both jointly, Kanthu v.
Vittamma (1902) 25 Mad., 385.

(6) The reference here is to inheiitanoe stiictly and not to survivor*
ship. The enlarged share which accrues to the lemainmg brothers on
the death of an undivided biother is ancestral property, and subject to
dll Jt*? incidents, Gungo Mull v Bunseedhiir (1869) 1 N.-W.P., 170,
Karuppai v. Sankaranarayanan (1904) 27 Mad., 300 F\B., Gurumurthi
Gurammul (1909) 32 Mad., 88, Karson Das v. Gangabai (1908) 32
Bom., 479, Rajkishoie v. Madan Gopal (1932) 13 Lah., 491^

3 ^^

Ancestral

property.

18 unobstructed
property.

Obstructed
inheritance
not ancestial.

354

tHlE JOINT FAMILY.

[chap. Vtit,

fiom his mother (c) or maternal grandfather [d) oi matcinal
uncle (e) or other collateral relation in the mateinal line, is
not ancestral property. It is now settled by a recent decision
of the Judicial Committee that the term ‘anceslial property'
must be confined to property descending to the father from
his male anccstoi in the male line and that it is only in that
property that the son acquires by biith an interest jointly with
and equal to that of his father (/) .

Now, under the Hindu Women’s Rights to Piopcity Act,
1937, where a man's separate properly devolves upon his
widow and his male issue, the widow’s intciest in the property
on hei death will devolve upon the male issue that suivive hei
as her husband’s heirs In that event the propcity would be
none the less ancestral piopcrly m the hands of the son oi
giandson; for, it is inheiited only as the father’s piopcity and
not as the pioperty of the mothei. So too, wheie the undivided
interest of a deceased Milakshara coparcener* devolves on his
widow, such interest when it goes back to the son oi giandson
IS taken by them as their father’s piopeity and not as the
mother’s pioperty and will consequent! v be ancestial
property (g).

(r) Rayadur I\all(itamhL v Muhunda (1868) 3 Mad II C , 435,
Nund Coomar Lall v Ruzziooddeen (1873) 10 B L.R., 183, 18 W.ll , 477,
Jawahir v Gayan (1868) 3 Agra 11 C., 78, Lotkaii v IScmdhutee
(1873) 20, W R., 170, Pitam v Ujagar (1878) 1 All, 651, Jolly,
TL.L, 121.

id) W & B, 710 (4th ed , 665’6) approved per cur y 10 B.L R ,
183, 192, supra y Jarnna Prasad v. Ram Partab (1907) 29 All., 667,
dissenting from Vythinath v Y eggia (1901) 27 Mad, 382 The Privy
Council and the Allahabad High Court point out that Colebrooke's
tiansldtion of the Milakshaia, ch. I, sec. 1, sub-scclion 27, “that
property in the paternal or ancestral estate is by birth” is inaccurate
and that the correct translation should be “in the paternal or grand-
paternal eblate” Md Husain v. Babu Kishva (1937) 64 I A., 250
L1937I All, 655, AIR, 1937, PC, 233 See also Alar Suigh v.
ThaLar bingh (1908) 35 I A , 206, at p 211, 35 Cal, 1039 as to what
lb ancestral estate See Mit., 1, 1, §§ 3, 5, 21, 24, 27, 33, i, v,
§§ 2, 3, 5, 9 — 11, pel Mitter, J., Gunga Prasad v. Ajudhia Pershad
(1892) 8 Cal , 131, p 134, per cunaniy Jasoda Kocr v. Shea Pershad
U890) 17 Cal, p 38, Nanabhai v. Achratbai (1888) 12 Bom., 122,
133, Santa v. Abbe Singh A.I.R., 1931, Lah , 708

(e) Karuppai v Sankaranarayana (1904) 27 Mad, 300, Mambhai v.
Shankerlal (1930) 54 Bom., 323; Bai Parson v Bai Somli (1912) 36
Bom , 424.

(/) Md Husain Khan v. Babu Kishva (1937) 64 I.A., 250, A.I.R.,
1937, P.C, 233, [1937] All, 655.

(g) See §591; Nanabhai v. Achratbai (1888) 12 Bom., 122, Beni
Prasad v. Puranchand (1896) 23 Cal, 262, Ramprasad v Radhaprasad
(1885 ) 7 All., 402, Sashi Bhushan v. Han Narain (1921) 48 Cal.,
1059; HiraLaL v. Sankar Lai (1938) 42 C.W.N., 695.

l>AftAS. 276-278.] ANCESTRAL PROPERTY.

35S

§ 276. That which is ancestral, and therefore copar-
cenary property, as regards a man’s own issue, is not so as
regards his collaterals. For they have no interest in it
by birth (A). On the other hand, property is not the less
ancestral because it was the separate or self-acquired property
of the ancestor from whom it came (i). When it has once
made a descent, its origin is immaterial as regards those
persons to whom it has descended. It is very material, how-
ever, as regards those who have not taken it by descent (y).

§ 277. All savings made out of ancestral property, and
all purchases or profits made from the income or sale of
ancestral property, would form part of the ancestral or
coparcenary propeity, whether such savings or acquisitions
were made before or after the birth of a son (A). On the
same principle accretions to a riparian village are ancestral
property, if the village itself was such (/). Property which
has been conferred on a widow for her maintenance retains
its chaiacter as ancestral when it reverts to the family on her
death (/^). Similarly where a member of a joint family has
assigned his undivided interest to a creditor to satisfy claims
which do not exhaust the entire value of the interest, any
residue continues to be ancestral properly (m).

§ 278. Where ancestral property has been divided
between several joint owners, tlicie can be no doubt that if
any of them have issue living at the time of the partition,
the share which falls to him will continue to be ancestral
propeity in his hands, as regards his issue, for their rights

(h) Adjoodhia v. Kashec Gir (1872) 4 N.W.P., 31, Gofjal Singh
V. Bheekunlal, S.D. of 1859, 294; Gopal Dutt v. Gopal Lall, ibid., 1314.

(i) Ram Narain v. Pertum Singh (1873) 20 W.R., 189, 11 B.L.K,
397, per curiam, Chattur Bhooj v. Dharamsi (1885) 9 Bom., 438, 450.

(;) Janki v. Nandruni (1889) 11 All. (F.B.), 194, 198
(/c) Lai Bahadur v. Kanhaiyalal (1907) 34 I.A., 65, 29 All.,
244; Umirthnath v. Goureenath (1870) 13 M.I.A., 542; Krisinappa
V. Ramaswamy (1872) 8 Mad. H.C., 25; Jugmohundas v. Mangaldas
(1886) 10 Bom., 528, 580; Isree Prasad v. Nasib Kooer (1884) 10
C]al., 1017 » Ramanna v. Venkata (1888) 11 Mad., 246. Semble, that
movable property which has made a descent, and is then converted
into land, possesses all the incidents of ancestral immovable property.
Sham Narain v. Raghoobur (1878) 3 Cal., 508. Family property
acquired by a coparcener by adverse possession against the family
IS not his self-acquisition. Sureshchandra v. Bai Ishwari (1938) 40
Bom. L.R., 127. Income received after disruption for period prior to
it would be an accretion. Shankar v. Official Receiver A.I.R. 1938
Lah., 328.

(/) Ramprasad v. Radhaprasad (1885) 7 All., 402.

(/l) Beni Pershad v. Puram Chand (1896) 23 Cal., 262.

(m) Krishnaswami v. Rajagopala (1895) 18 Mad., 73, p. 83.

Accretions
to ancestral
property.

Divided

properly.

356

The joint family.

[chap. Vnl,

Self-acquired
property of
father gifted
or bequeathed
to son

had already attached upon it, and the partition only cuts off
the claims of the dividing members. The father and his issue
still remain joint (n) . The same rule would apply even where
the partition had been made before the birth of issue (o),
for the share which is taken at a partition by one of the
coparceners is taken by him as representing his branch (p) .
Where a man had obtained a share of family property on
partition, which was mortgaged to its full value, and which
he had subsequently cleared from the mortgage by his own
self-acquisitions it was held that the unencumbered piopeity
was ancestral property in his hands (q) ,

§ 279 The question whether the self-acquired propeitv
of the father which has been the subject of a gift or bequest
by him to his son is ancestral property in the latter s hands
has given rise to a considerable diffeience of opinion. In
Mudduri Copal \. Ram Baksh (r) it was held that “landed
property acquired by a grandfather and distributed by him
amongst his sons, does not by such gift become the self-
acquired property of the sons so as to enable them to dispose
of It by gift or sale.” Referring to the property in that case,
they held that "‘it cannot be said to have been acquired
without detriment to the fathei's estate because it was not
only given out of that estate, but in substitution for the
undivided share of that estate to which the father appears to
have been entitled ” The decision cannot therefore be
regarded as an authority foi the general proposition that
where there is a gift or bequest by a father of his self-
acquired propel ty, it is nevertheless ancestral property under
all circumstances. In Hazanmul Babu v. Abaninath ( 5 )
Mookerjee, J., thought that if the matter were res Integra, he
could give full effect to the texts in the Mitakshara (I, vi,

in) Lai Bahadur v. Kanhaiya Lai (1907) 34 I A , 65, 29 All, 244,
Lakshmibai v. Ganpat Moraho (1868) 5 Bom. H.C. (O.CJ.), 129,
Rajaram v. Pertum Singh (1873) 11 Beng. L.R., 397; Baijnath v.

Mahraj (1933) 8 Luck, 28, A.I.R., 1932, Oudh 158; Bejai v. Bhupindar

(1895) 22 I A., 139, 17 All, 456.

(o) Adiirmoni v. Chowdhry (1878) 3 Cal., 1.

(p) Haribaksh v Babulal (1924) 51 I A., 163, 5 Lah , 92.

iq) Visalatchy v Annaswami (1869) 5 M H C., 150; Krishnaswami
V Rajagopala (1895) 18 Mad., 73, 83, Secus where the mortgage is
foreclosed and the mortgaged propeity is purchased back by a copar-
cener with his self acquisition, Balwantsingh v Rani Kishori (1898) 25
I.A., 54, 20 All , 267.

(r) (1863) 6 WR, 71, 73, In Mohabeer Kooer v. Joobha (1871)

16 WR, 221, d contrary opinion seems to have been expressed by

Jackson, J. See also Adharchnndra v. Nobmchandra (1907) 12

C.W.N., 103.

is) (1912) 17 C.W.N., 280.

PARA. 279.] father’s gifts and bequests.

357

13-16) and he distinguished the case before him as one where
the bequest was, as in Muddun GopaVs case, in recognition of
the legal rights of younger sons to maintenance. In Tara
Chand v. Reeb Ram (t) , the Madras High Court questioned
the right of a father to make a gift inter vivos and a fortiori
by will, of his self-acquired landed property so as to deprive
the sons of their shares in it; it was not settled then that the
father had absolute powers of disposition over his self-
acquired property (m). They thought that the ancestral
character of the property is not changed by the son’s choosing
to accept it under the father’s will. In Nagalingam Pilfai
V. Ramachandra {v), the Madras High Court, referring to the
bequest of self-acquired property by a father to his sons, held ,
that it is open to a father to determine whether the property
which he bequeaths or gives to his sons shall be ancestral
or self -acquired but unless he expresses his wish that it should
be deemed to be self-acquired, it is ancestral. The Bombay
High Court holds the view that if there is no express intention
of the father that it should be taken as ancestral, it must be
deemed to be self -acquired (w) .

The Allahabad (x) and the Lahore (y) High Courts and
the Oudh Chief Court (z) follow the Bombay view and hold
that in the absence of a clearly expressed intention that it
should be taken as ancestral, it should be deemed to be self-
acquired, In Lai Ram v. Dy, Commissioner, Partabgarh (a)

(t) (1866) 3 50, 55,

(u) Rao Balwant Singh v. Rani Kishori (1898) 25 I.A., 54, 20 All.,
267.

(v) (1901) 24 Mad,, 429; Kasi Visvesra v. Varaha Narasimhan
A.TR., 1937, Mad., 631; Krishnaswami Naidu v. Seethalakshmi (1916)
39 Mad., 1029, 18 M.L.T., 542 (where a gift is made to an illegitimate
son for his maintenance, the property is not ancestral property in his
hands). Indoji v. Ramachandra (1919) 10 ML.W, 498, Rajah of
Ramnad v. Sundarapandia (1914) 27 M.L.J , 694; see these cases
referred to in Janakiram Chetti v. Nagamony (1926) 49 Mad., 98.

(w) Jugmohundas v. Mangaldas (1886) 10 Bom., 528; Nanabhai v.
Achratbai (1888) 12 Bnm., 122; see on this, the observation of
Beaman, J., in Ahmedbhoy v. Sir Dinshaw M, Petit (1909) 11 Bom.
L.R., 545, 594, 595, 599.

(x) Purushottam v. Janki (1907) 29 AIL, 354; Jai Prakash v.
Bhegwandas & Co. (1937) A.L.J., 356, A.I.R., 1937, All., 453.

(y) Amarnath v. Guranditta Mai A.I.R., 1918, Lah , 394, 43 I.C ,
117; Ramsingh v. Ram Nath A.I.R., 1932, Lah., 533; Jagtar Singh v.
Raghbir (1932) 13 Lah., 165, A.I.R., 1932, Lah., 85; Kishan Chand v.
Punjab Sindh Bank, Ltd., A.I.R., 1934, Lah., 534.

(z) Mt. Brij Kunwar v. Sankata Prasad (1930) 4 Luck. 300, A.I R.,
1930, Oudh. 39.

(a) (1923) 50 LA., 265, 45 AIL, 596.

Conflicting

views.

358

THE JOINT FAMILY.

[chap. VIH,

Mitakshara
on the point.

after referring to this difference of opinion, the Judicial
Committee left the question open with an intimation however
that a decision on the question might turn upon the construc-
tion of the texts in the Mitakshara. The view of the Bombay,
Allahabad and Lahore High Courts is to be preferred.

§ 280 The Mitakshara is reasonably plain on the ques-
tion. In I, IV, which deals with effects not liable to partition,
Vijnanesvara says in para 28, ‘‘what is obtained through the
father’s favour will be subsequently declared exempt from
partition.” In Muddun Copal’s case, it was said that a gift
to the son should have been without detriment to the father’s
estate as if that were the sole criterion of self -acquisition. But
Mit., I, IV, 28 is an exception and cannot be read as requiring
that the gift should be without detriment to the father’s
estate; for it would be a contradiction in terms to say that
there could be any gift by a father out of his estate without
detriment to that estate. The text of Yajnavalkya which is
cited in I, vi, 13, says: “The wealth which is given to one by
parents belongs to him alone” (6). The explanation in the
Mitakshara is that what is given by a father to a son, whether
before or after separation appertains solely to hiin(c).
The Court in Muddun Copal’s case considers this as declaring
that such a gift is not partible amongst the donee’s brothers
though it is paitible between the donee and his sons But
as Sargent, C J , pointed out, I, iv, 28 is equally applicable
in all cases of partition including that between a man and
his own sons, and not merely betweem collaterals, for Section
IV IS admittedly applicable to all cases (dj. And the
language of I, vi, 1 5-16 makes it conclusive that the gift of
ihe fathei belongs only to the donee and to none else (e).

On pnnciple too, the same result would follow. The
grandfather is at liberty to dispose of his property absolutely
before his death against both his son and grandson and when

(b) Yajn, II, 123, Mandlik, 216

(r) Mit , I, VI, 14-1'S; “It is shared by no other'’ I, vi, 16.

(d) Jiigmohundas v. Mangaldas (1886) 10 Bom, 528, 579

(e) Mil , 1, vj, 15 The text of the Mitakshara cannot be read as
being confined to cases of gifts by a father out of his ancestral pro-
perty to his son because the whole of Section IV deafs not only with
acquisitions made without detriment to father's estate but I, vi, 13
also deals only with father's goods. The court in Muddun GopaVs case
rightly understood it so. though the court in Lakshman v Ramachandra
(1876) 1 Bom, 561 thought that I, vi, 13-16 refer to gifts out of
ancestral property. The passage in the Viramitrodaya proceeds upon
the notion of Hindu writers that even gifts of immovable property by
a father should be governed by propriety — not by caprice and refers to
gifts out of paternal properly Vijnanesvara says nolhing about pro-
priety or caprice. (Viramil, Seihir, II, 461,)

PARAS. 280-281.]

JOINT ACQUISITION.

359

he makes a gift or bequest to his son, he ordinarily intends
that he should take it as a bounty. Otherwise, when a grand-
father makes a gift of his self-acquired property to his son
inter vivos, if it were ancestral, it should be open to a grand-
son in existence at the time of the gift to claim a partition
of the property at once before the grandfather’s death which
would be a reductio ad absuidum. In the absence of any
intention expressed by him that the donee or legatee should
take it on behalf of his family, it must be presumed that he
intends that it should belong solely to the donee or legatee;
for, to hold that he intends it to be taken as ancestral means
that he intends to give it not only to his son but to his son
and grandson as joint owners. Neither the above texts nor
any principle of Hindu law however prevent a father from
giving his son property m such a way that it may be taken
by him as ancestral property as regards his male issue (/).

§ 281. Secondly, properly may be joint property with-
out having been ancestral. Where the members of a joint
family acquire property by or with the assistance of joint
funds (g) or by their joint labour or in their joint business
01 by a gift or a grant made to them as a joint family (/i),
such property is the coparcenary property of the persons who
have acquired it, whether it is bn increment to ancestral
property, or whether it has arisen without any nucleus of
descended property. And it makes no difference that the
form of the conveyance to them would make them tenants
in common and not joint tenants (i). For the formation of
a coparcenary under Hindu law, a nucleus of property which
has come down to the father from his father, grandfather
or great-grandfather is not necessary, provided the persons
constituting it stand in the relation of father and son or other
relation requisite for a coparcenary system (/) . It is now

if) Sep Seth Jaidial v. Seth Sitaram (1881) 8 l.A . 215, 227, 228.

ig) Mann, ix , § 215; Yajnavalkya, ii, 120; Milakshara, i, 4, § 15;

F. MarN , 351, 362, Rarnasheshatya v Bhagavat (1868) 4 Ma(i.

5, Rampershad v Sheochurn (1866) 10 MIA, 490, Lai Bahadur v.

Kanhaiyalal (1907) 34 I A, 65, 29 All, 244, Umnthnath v Goureenath
(1870) 13 M.T.A , 542, Sudarsana Maistn v Narasimhulu (1902) 25
Mdtl., 149, Radhabai v. Nanarav (1879) 3 Bom, 151.

(h) Yethirajiilu v Mukiinthu (1905) 28 Mad., 363, Kunhacha
JJmma v. Kutti Mammi Hajee (1893) 16 Mad, 201, FB., Sudarsanam
V. Narasimhulu (1902) 25 Mad., 149; Vengamma v. Chelamayya (1913)
36 Mad., 484; Chakkra Kannan v. Kunhi Pokker (1916) 39 Mad., 317,
FB , Krishnainurthi v. Seetamma A.T R., 1937, Mad., 29.
ii) In the goods of Pokurmull (1896) 23 Cal., 980.

(/) Laldas Narandas v. Motibai (1908) 10 Bom. L.R , 175; Rang-

bhai V. Sitabai (1918) 20 Bom. L.R., 338, 342; Parbhu Lai v. Bha$wan
A.I.R , 1927, Bom., 412, 414,

Properly

jointly

acquired.

3/)0

THE JOINT FAMILY.

[chap. VIII,

settled that when the members of a joint family, by their
joint labour or in their joint business, acquire property, that
property, in the absence of a clear indication of a contrary
intention would be owned by them as joint family property
and their male issue would necessarily acquire a right bv
birth in such property (k) ; for, undei the Mitakshara system
there can be no joint family property in respect of which
the male issue of the joint owners do not take a share by
birth (Z). If there is satisfactory evidence of an intention
to treat the property not as joint family property, but as joint
property only, i c., as the joint self-acquisition of the acquirers
it will be given effect to. But the presumption is in favour
of its being regarded as joint family property (Z^).

§ 281 A. So long as a family remains an undivided
family two oi more members of it, whether they be members
of different branches or of one and the same branch of the
family, can have no legal existence as a separate independent

{k) Sudarsanam Maistri v Narasimhulu (1902) 25 Mad, 149, 156,
Govmd Rao V Rajahai (1930) 58 I A . 106, 110, 35 CWN, 438,
AIR, 1931, P.C, 48; Karuppai v Sankaranarayan (1904) 27 Mad,
300, 313, FB., Vasudeva Rao v. Sakharam Rao (1928) 54 MLJ, 239,
A.I.R , 1928, Mad, 412; Madhavaiya Chetty v Damodaram (1912) 12
ML.T, 240, Ratna v Vijiaranga AIR, 1926, Mad, 762, 23 M L W.,
716, Venkayamma v Gangayya, AIR, 1934, Mad, 16, 65 M.L.J ,
703, Amirdham v Valliammai AIR, 1936, Mad, 19, Knshnamurthi
V. Seetamrna A.IR, 1937, Mad., 29, Haridas Narayandas v Devkuvarbai
(1926) 50 Bom, 443, following Laldas iSarandas v Motibai (1908) 10

Born LR, 175 and Karsondas v Gangabai (1908) 32 Bom, 479 and

dissenting from Chatturbhooj v Dharamsi (1884) 9 Bom , 438, Rengu
V Lakshmnn AIR, 1930, Bom, 438, Sunnal Das v Kure Mai (1928)
9 Lah , 470

(/) A difTiciilly IS created by the decisions of the Priv\
Council in the Juggumpet case (25 Mad, 678) and in Md
Hosein v Babu Kishva (64 lA, 250) In the latter case tin
Judicial Committee explained the earlier case as one where the two
brothers took the estate of the maternal grandfather at the same
time and by the same title and there was apparently no reason

why they should not hold that in the same manner as they

held their other joint property This obviously means that their sons
also will he coparceners But in the Juggumpet case, the Privy
Council did not rest their decision upon the (ondiict of the hrothc s m
treating it as joint family property but they considered it necessary
to decide the nature of the ownership acquired by the grandsons
Their father was alive when they succeeded to the maternal grandfathei’s
property and that fact would negative any coparcenary But the
de( ision in 64 I A , 250 explains the toparcenary in the earlitr case as
a presumption of fact The Juggumpet case must therefore he con-
fined to Its own facts. See § 537

(Z^) Ganpat v Annaji (1899) 23 Bom, 144 Rampershad \ Shen
churn (1866) 10 MIA, 490 Sudarsanam Maistri \ Narasimhulu
Maistri (1902) 25 Mad, 149, Gopalasami Chetti v. Arunachellam Chetti
(1904) 27 Mad, 32, 35, Karuppai Nachiar v. Sankaranarayana Chetty
(1904) 27 Mad., 3()0 F.B.; Munisami Chetti v. Maruthammal (1911)
34 Mad., 211; Kharsandas Dharmsey v. Gangabai (1908 ) 32 Bom., 479.

PARAS. 281 a-283.]

BLENDING.

361

unit; but all the members of a branch, or of a sub-branch,
can form a distinct and separate corporate unit within the
larger corporate family and hold property as such. Such pro-
perty will be joint family property of the members of the
branch inter se, but will be separate property of that branch
in relation to the larger family (//i). It would seem that
there can be a joint family with a single male member
piovided theie are widows of deceased coparceners {n) .

§ 282. The principle of joint tenancy is unknown to
Hindu law except in the case of the joint property of an
undivided Hindu family governed by the Mitakshara law (o).
The question therefore whether members of a joint family
hold property comprised in a gift or bequest to them as
tenants in common or as members of a joint family depends
on the intention of the donor or the testator as expressed in
the grant or the will (/?).

§ 283. Thirdly^ property which was originally self-
acquired, may become joint property, if it has been
voluntarily thrown by the owner into the joint stock, with
the intention of abandoning all separate claims upon it (q) .
This doctrine has been repeatedly recognized by the Privy
Council. Perhaps the strongest case was one, where the

(m) Sudarsana Mmstn v Naranmhulu (1902) 25 Mad., 149, 155;
Chakkra Kannan v. Kiinm Pokker (1916) 39 Mad , 317, 336, F B ,
Himmat v Bhawam (1908) 30 All., 352, 359, 360, Official Assignee,
Madras v Neelambal (1933) 65 MLJ , 798, Abdul Kadar v. Shridhar
(1937) 20 N.L.J , 229.

in) Vedathanm y. I T Commissioner, Madras (1933) 56 Mad. 1.
Kalyanji \. I T Commissioner, Bengal (1937) 64 I.A., 28, [1937] 1
Cal , 653. After the recent Act perhaps, even when there are widows
only.

(o) Baku Ram v. Rajendra (1933) 60 I A , 95, 8 Luck., 121.

ip) Jogeswar Narain v. Ramchunder Dutt (1897) 23 LA., 37, 23 Cal.,
670, (1933) 60 LA , 95, 8 Luck., 121 supra, Venkayamma v. Gangayya
(1933) 65 MLJ, 703; Bai Divah v Patel Bachandas (1902) 26 Bom,
445: Kishon Dubain v Mundra (1911) 33 All, 665; Muthu Meenakshi
V. Chandrasekhara (1904) 27 Mad., 498, 503, see also Yethirajulu v.
Miikunthu (1905 ) 28 Mad, 363, Janakiram v. Nagamony (1926)
49 Mad , 98.

io) In Shiba Prasad v. Prayag Kumari (59 LA, 331), Sir
D. F. Miilla relying on an observation of Sir Lawrence Peel in
Gooroochurn Doss v. Goluckmony 1, Foulton, 165, 172, 1, Ind., Decisions
Old series (748) cites Mit , I, iv, 31, as the text on which the whole
doctrine of merger of estates with the blending of income is founded.
The text runs as follows, “among unseparated brethren, if the common
stock be improved or augmented by any one of them, through agricul-
ture, commerce or similar means, an equal distribution nevertheless
takes place; and a double share is not allotted to the acquirer.’* The
Sanskrit text as well as the translation, read with the text of Yajn.,
II, 120 makes it reasonably clear that what is meant is that any
coparcener who uses the family stock through trade, agriculture or
any other means for the purpose of augmenting it is not entitled to
an extra share for his special exertions^ As Mr^ Mandlik points out,

Joint tenancy
unknown to
Hindu law.

or thrown
into common
stock.

3(32

THE JOINT FAMILY.

[chap. VIII,

owner had actually obtained a statutory title to the property
under the Oudh Talukdars Art I of 1869. He was held by
his conduct to have restored it to the condition of ancestral
property (r). The question whether he has done so or not,
is entirely one of fact, to be decided m the light of all the
circumstances of the case ( 5 ) ; but a clear intention to waive
his sepal ate rights must be established and will not be infeired
from acts which may have been done merely from kindness
or affection it ) .

\ijnanesvara refers to this as an exception to Vasishtha’s text cited
in Mit , J, IV, 29 See also Sulapam’s (ornrnenl ( xtracted in Mandlik,
p. 215 Ft does not appear to have anything to do with blending the

income of a disiimt self-aiquisiiion with the income of the joint

family prop< rlv and so converting that whu Fi was originalK a self-
acqiiisition into coparcenary property

ir) Hurftursharl v Sheo Dva! (1876) 3 T A, 23‘), Shankar Baksh

V Ilnnlco Bahsti (1889) 16 lA, 71 » 16 Cal., 397, as to cases m
which sue li a Taliiqdar was held lo have takem tlic* Statutory estate*
on trust for the otlicT members of the family, see Mt Thukrain Soolraj

V Government (1871) 11 MTA, 112 Thakoor llardeo Biix v fowalrr
Singh (1877) 4 I A, 178, 3 ( al , 522, (1879) 6 lA, 161, Thahuram
Ramanund v Raghunath Koer (1882) 9 I A , 41, 8 Cal , 769, Hasan Jajar

V Muhammad Asian (1899) 26 I A , 229, 26 ( al , 879, JmI Bahadur

V Kanhai Lai (1907) 34 I A, 65, 29 All, 211, per (iir , Rarnpershad

V Shcochurn (1866) 10 MTA, 490, 506, ChcIIyarnal \ Muttialamal 6

Mad, Jur, P( , 108, Sham Narain v (.ourt of Wards (1873) 20 W R ,
197, j)er < unam (1891) 15 Rom, 12, 39, (1884) 10 ( al , 392, 198, 101,
Madhavaiav Manohar v Almaram (1891) 15 Bom, 519, in Tribovandas
V. Yorke Smith (1897) 21 Bom, 349, reversing 20 Bom. 316, the same
rule was applied to property which, though not self acquired, had

descended from a maternal ancesloi to daiighlc r's sons 4'hf*\ would
not he coparceners, hut had elected to treat it as punt pioperty,
Gopalasarni v ( hinnasami (1884) 7 Mad, 458, Krishnaji v. Moro
Mahadev (1891) 15 Bom, 32

(a) Lai Bahadur v Kanhaiya Lai (1907) 34 1 A, 6,5, 29 All, 211,
Suraj l\arain v Ratan Lai (1917) 44 1 A, 201 10 All 159, Radha

Kant JaiI v Nazma (1918) 45 Cal , 733, P C , 22 ( W N , 619, .15 M I. T ,
99

(t) Lala Muddun Gopal v Khikhinda Koer (1891) 18 I A, 9, 18
Cal , 341 This passage is cited in Naina Pillai \ Daivanai

A F R , 19,36, Mad , 177, where in a senes of documents, self-acquired pro
perty was descrihc’d and dealt with as ancestral joint family property 'Phe
(’ourt lu Id that llie mtie dealing with self-acquisit ions as joint family
property was not suflicieiit but an intention must be shown to waive his
claims with full knowledge of liis light to it as his separate property
Rajkishore v Madan Gopal (1932) 13 Lah , 491, Knshnasami Sastri v
Avayamhal AIK, 1933 Mad, 204, Asutosh Miikerjee v Tarapada

ATR, 1934, Cal, 308, Maganlal v Mt Krishna Bibi A.TR., 1935,

All, 303, Mayandi v Sandanam AIR, 1925, Mad, 303, Parvati v.
Sivarama AFR, 1927, Mad, 90, Ahobilachari v Thiilasi AIR, 1927,
Mad, 830, Rajanikanta v. Bashiram AFR, 1929 Cal, 636, V isvasun-
darn v Pallamraju AIR, 1933, Mad, 565» Govind Prasad v. Shanti
Swamp ATR, 1935, All, 778, Rajagopala v Seshawa Naidu AIR,
1935, Mad, 368, Jotising \ Jangu Singh AIR, 1933, Oudh, 482,
Pareshchandra v Amaresh AIR, 1931, Cal, 666, Sandanam \ Soma-
mndaram (19.37) 1 MLJ, 364, Jagannatha Rao v. Ramonna (1937)

2 M.F^J., 386, Narayanaswami v. Ratnasabapathy (1937) 2 M.L.J.,
906, Moot Raj V. Manohar Lai AJ R., 1938, Lab, 204

PARA. 283.]

BLENDING.

363

In the case of Periakaruppan Chetty v. Arunachalam
Chetty {u) where a father built a house of considerable value
on a site worth a few rupees and afterwards adopted a son
and both lived in the same house, it was held that the super-
structure did not become joint family property. Separate
property does not cease to be such and become joint
family property by any physical act but by the acquirer’s
own volition and intention to surrender his exclusive rights.
Where the manager of a Mitakshara joint family mixes the
income of the joint family with the income of his separate
property or pays both the incomes into the same account in
a bank, it will not be sufficient evidence of an intention to
alter the character of the separate property, if he maintains
separate accounts of both the incomes. In Nutbehari Das v.
Nanilal Das {v) a Dayabhaga case where the rule as to
blending is the same as in a Mitakshara family (i^), the
Judicial Committee, approving the judgment of Reilly, J.. in
Periakaruppan Chetty^ s case observed that even in the
case of a Karta mixing his own moneys with family moneys,
the mere fact of a common till or common bank account need
of itself effect no blending so long as accounts are kept. In
N arayanaswami v. Ratnasabapathi {x) the Madras High
Court went a step further and held that as the onus is upon
the person who claims that the separate property has become
joint family property by blending the incomes of the two
properties, the fact that no accounts were kept will not raise
any presumption in favour of blending; for the reasonable
presumption to make in favour of any person having income
at his absolute disposal is, that he intended to reserve to
himself that power of disposal. The rule as to a trustee
mixing his own funds with the funds of a cestui que trust
does not furnish a true analogy ( j) . It is difficult to see how
by mixing the income derived from a separate property such

(u) Periakaruppan Chetty v. Arunachalam Chetty (1927) 50 Mad ,
582; see also Kah Prasad v. Chandnka Prasad A.T.R., 1927, Oudh.,
335; Vithoba v. llanba (1869) 6 Bom. H C.R., (A.CJ) 54.

iv) 41 C.W.N., 613; AT.R., 1937, PC., 61, (1937 ) 2 M.LJ. 114,
reversing 38 C.W.N., 861.

(fc) Rajamkanta Pal v. Jaga Mohan Pal (1923) 50 I.A., 173, 50
Cal., 439.

{x) (1937) 2 M.L.J., 906.

(y) (1937) 2 M.L.J., 906 supra, following Akkamma v. Venkayra
(1902) 25 Mad., 351 and disapproving Bell Ram v. Sardanlal A.I.R.,
1930, Lah., 613 and Knshnamachari v. Chellammal A.I.R., 1928,
Mad., 561; Venkayamma v. Gangayya A.I R , 1934, Mad, 16, 65 M.LJ,
703; Magan Lai v. Mt, Krishna Bibi A.I.R., 1935, All. 303; Asutosh
Mukherjee v. Tarapada Makherjee A.I.R., 1934, Cal., 308; Raj Kishorc

What

amounts to
blending.

364

THE JOINT FAMILY.

[chap VIII,

as a house or a landed estate or a specific investment with the
income of ancestral property, the corpus of the self -acquisi-
tion which is easily distinguishable, becomes incorporated into
the joint family property. The intention to benefit the family
by spending the income of the separate property for family
purposes cannot be converted into an intention to transfer
the property itself to the joint family, for that is what it
amounts to as was pointed out by the Privy Council in
Hurpershad^s case ( 2 ). To say that there is a duty to keep
an account of the income of his separate property is to say
that a man cannot spend his separate income for family
purposes except at his peiil Where however no accounts
are kept of the joint income, the inference may in a proper
case be made that what is claimed as self-acquisition was
really made at the expense of the joint family.

Income from

impartible

estate.

§ 284 It is settled that an impartible^ estate may be
ancestral property of a joint family consisting of the holder
and the junior members with rights of survivorship though
there is neither a right to partition nor a right to forbid an
alienation nor a right to maintenance except in the case of
the sons of the last holder (o). The income received by the
holder of an impartible estate is his own absolute and
separate property and any purchases made from that income
will be equally his exclusive property unless he chooses to
incorporate such self-acquisitions with the joint family
estate (b). The whole subject of impartible estates will be
discussed in a separate chapter fCh XIX)

Coparceners
may hold
property
separately

§ 285. All property which is not held in coparcenary
IS separate property and Hindu law recognises separate pro-
perty of individual membeis of a coparcenary as well as of
separated members. (1) Property which comes to a man
as obstructed heritage { sapratibandhadaya) is his separate

\ Madan Gopal ( 1932 ) 13 Lab , 491 , Pragada Krishnamoorthi v
Pragada Seetama AIR, 1937, Mad, 29, Alavandar Gramani \
Danakoti Ammal A.I.R , 1927, Mad, 383, Babanna v Parawa (1926)
50 Bom 815

(z) Hurpershad v Sheo Dayal (1876) 3 I -\ , 259, 277, see also
Ramaswami v Raju Padayachi (1926) 51 MLJ, 167

(а) Baijnath Prasad v. Tejbali (1921) 48 I.A , 195, 43 All, 228,
Shibaprasad v Prayag Kumari (1932) 59 I A, 331, 59 Cal, 1399,
Collector of Gorakpur v Ram Sunder Mai (1934) 61 I A , 286, 56 All,
468; Konammal v. Annadana (1928) 55 I A , 114, 51 Mad, 189, Rama
Rao V Raja of Pittapur (1918) 45 I A , 148, 41 Mad, 778, Sellappa
Chetty V. Suppan Chetty [1937] Mad, 906, Miittayan Chetty v.
Sangili (1878) 3 Mad., 370.

(б) Shibaprasad v. Prayag Kuman (1932) 59 1 A., 331, 353, 59
Cal., 1399, 1422; Jagadamba v. Narain (1923) 50 LA., 1, 2 Pat., 319.

t^AHAS. 285-286.]

SEiJLti'-ACQlIlSlTIOJN.

365

property. It is not self -acquired property within the meaning
of Hindu law, though in their incidents, there may be no
difference between the two species. In Muttayan Chetty v.
Sangili{c)^ the Privy Council concurred with the Madras
High Court in holding that inherited property was not self-
acquired property. (2) Property may be self-acquired; such
self-acquisitions may be made by any one while even in a
state of union. (3) Property which a man takes at a partition
will be his separate property as regards those from whom he
has severed but will be ancestral property as regards his own
issue. (4) So, too, family property vested in the last survi-
ving male member of a coparcenary will be his separate
property subject to its becoming at any moment coparcenary
property when he has male issue or when an adoption is made
to him or to a predeceased coparcener in the family. For the
purpose of Hindu law, a posthumous son of a coparcener is
as much a coparcener as a son born before his death. The
first and third heads of separate property have already been
discussed. (§§ 275, 278).

§ 286. The doctrine of self-acquisition is briefly stated Self-
by Yajnavalkya as follows: — “Whatever is acquired by the a^'qwisition.
coparcener himself, without detriment to the father’s estate,
as a present from a friend, or a gift at nuptials, does not
appertain to the co-heirs (d) . Nor shall he who recovers
hereditary property which has been taken away give it up
to the coparceners; nor what has been gained by science” (e).

Upon this the Smriti Chandrika remarks that the estate of the
father means the estate of any undivided co-heir (/K While
the Mitakshara adds that the words “without detriment to the
father’s estate” must be connected with each member of the
sentence. “Consequently what is obtained from a friend as
the return of an obligation conferred at the charge of the
patrimony; what is received at a marriage concluded in the
form Asura or the like (g) ; what is recovered of the heredi-

(c) (1883) 9 LA., 128, 143 ; 6 Mad., 1, on appeal from 3 Mad.,
370, (375, 376, 377) : The term self-acquisition should, without includ-
ing property which a man takes as obstructed heritage, be confined
to acquisitions properly so called.

id) See as to presents from relations or friends, Manu, ix, § 206;
Narada, xiii, §§ 6, 7; Mitakshara, i, 5, §9; I, iv 8, 12.

(c) Yajn., li, §§118, 119; Mit., i, 4, §1. See Daya Bhaga, VI, li;
D.K.S., IV, 2, §§1-12; V. May., iv, 7, §§1-14; Dayatattva, v, 1-12.

(/) Smriti Chandrika, vii, § 28.

(g) Not in approved marriages. Sheo Gobind v. Sham Narain
(1875) 7 N.-W.P.. 75.

366

tHE JOINT EAMlLY.

[CttAP. Vlll,

Cams of
science

tary e&tate by the expenditure of the father’s goods; what is
earned by science acquired at the expense of ancestral wealth;
all that must be shared with the whole of the brethren and
the father” (h) . The author of the Mitakshara enlarges the
text of Yajnavalkya by defining self-acquisition as “that which
had been acquired by the cojiarcener himself without any
detriment to the goods of his father ot mother ''\i) . This
extension has not been accepted and it is now settled that
property inherited by a man from his mother or mother’s
lather is not ancestral and is only his separate property (y).
The test of self -acquisition is that it should be “without detri-
ment to the father’s estate.” Accordingly all acquisitions
made by a coparcener or coparceners with the aid of the joint
estate become joint family property.

§ 2(37. The gams of science oi valour, which seem to
have been the earliest forms of self-acquisition, weie held to
be joint pi Opel ty, il the Icaining had been impaitcd at the
expense of the joint family, oi if the waiiioi had used his
father’s swoid.

Katyayana says. “Wealth, gaiiKnl through science which
was acquired fiorn a stranger while receiving a foieign main-
tenance, IS termed acquisition through learning” and is
theiefore impailiblc [k) . Naiada says: “He who maintains
the family of a brothei, while that brother was engaged in
study shall get a share from the latter’s vidyadhanam though

Ui) Mil, 1, 1, §6

(/) Mil, I, 1, §2, acr Kdfjlninaiidana, v, 5, Miitta\an Chetty v.
Sangih (188J) 9 lA, 128, 6 Mad, 1, rcveising (1880) 3 Mad, 370.

{]) KarupiHH V. SanLaranaray anari (1904) 27 Mad., 300 F.B.,
Manibhai v bhanher Lai (1930) 54 Bom., 323, Muhammad Husain v.
Halm Kishva (19J7) 64 1 A., 250, L1937I All , 655 iht ddiiglilcrs boiib
may (’!< ( t lo liold tlir maternal grandfather’s estate as pait of the
coparcenary property of the family.

{k) Katyayana cited in Mit , I, i\, 8 and m Smriticliandrika VII,
2 (p. 77) , The Vivada Ratnakara says («) If a man who has acquired
learning, while maintaining himself with food and clothing supplied
out of the joint properly, acquires wealth without the help of the
joint property — then, he shall not give any share out of it to an
unlearned coparcener, (6) but if the gam of learning has been obtained
with the help of the joint property, then a share in it has to be given
to the unlearned coparcener also* (c) if the joint property has not
been drawn upon during the time of acquisition of learning, then no
share need be given to any one else, even though at the time of the
acquiring of the property itself, the joint property may have been
used, in this case, it belongs to the learned man only. Vivada
Ratnakara cited in jha. I1.L.S., Vol. II, 54.

t^AlRAS. 287-288.]

GAINS OF LEARNING.

367

not previously promised” (/). While the Mitak&hara lays
down that gams of learning or science which aie acquired
at the expense of ancestral wealth arc paitible, it explains
also what is meant by gains of learning. “He need not give
up to the coheirs what has been gained by him through
science, by reading the scriptures or by expounding their
meaning; the acquirer shall retain such gams” (m).
Katyayana enumerates exhaustively, the gains of learning:

(1) What is gained by proving superior learning after a
prize has been offered, must be considered as acquired
through science and is not included in a paitition among
coheirs.

(2) What has been obtained fiom a pupil or by
officiating as priest or for answeiing a question or for
determining a point in dispute oi for the display of
knowledge or by success in disputation or foi reciting the
Vedas with triinscendcnl ability, the sages have declaied to
be the gains of science and not subject to disliibulion.

(3) What is gamed thiough skill by winning fiom anothei
a slake at play, Bnhaspali oidains as acquiicd by science
and not liable to partition.

(4) What IS obtained by the boast of learning, what is
received from a pupil or for the peiformance of a sacrifice,
Uhiigu calls the acquisition of science.

(5) The same rule likewise pievails in regard to ai lists
and in regard to what has been gained in excess of the
presciibed hire.

(6) What has been gained from supenoiity i^. learning
and what has been acquiied in a saciifice or from a pupil,
sages have declared to be the acquisition of science.

(7) What is olheiwisc acquired is the joint propeity (n).

The Sinritichandrika adds a gloss: What is otherwise
accpiiicd, i.c , acquired otherwise than by science or accjuiied
with the use of the palcinal common wealth is the joint
property of the undivided co-heirs and is as such divisible (o) .

S 288. According to Katyayana, ihe Milakshaia, and the
Smiitichandrika, the gains of leaimng which are impartible
are only those gams .which are directly gained by the proof

(/) Nar., XIII, 10. Nilakantha does not accept the exposition in the
Madana Ratna of *asruta* as ‘unlearned’ but takes it as one who has got
no promise thus* “I shall give a share.” (Gharpure*s trans. 95). The
basis would seem to be an implied contract.

{m) Mit., I, iv, 5.

in) Katyayana cited in the Smritichandrika VII, 4, p. 78.

(o) Smritichandrika, Vll, 5 (page 78-80 Krislnaswaml Iyer’s trans.).

368

THE JOINT FAMILY.

{chap, vni,

or display of superiority in learning and specified in the
texts when the learning itself was not acquired at the expense
of the family. Such gains of a man who received either an
ordinary or a specialised education, as are the fruits of his
own efforts and talents, othei than the direct gains enumerat-
ed by Katyayana are not the ‘gains of learning’ according
to Katyayana, or the Mitakshara. According to the Mitak-
shara, all other acquisitions by a coparcener are partible,
whether at the expense of the patiimony or not (p) . It is
however difficult to see why a peison who has made gams
by science, after having been educated or maintained at the
family expense, should be in a wor.se position than any other
who has been so educated oi maintained and who has after-
wards made self-acquisitions. Jimuta’' ahana lays it down,
that where it is attempted to i educe a separate acquisition
into common property on the giound that it was obtained
with the aid of common piopeity, it must be shown that
the joint stock was used for the expiess puipose of gam.
“It becomes not common, merely because property may have
been used for food or other necessaries, since that is similar
to the sucking of the mother's bieast” (q). This ib eminently
leasonable

According to the Mitakshara theie could be no anomalous
distinction between the gams of a trader, a banker, a judge,
a karkun, an astrologer or an army contractor, and the gams
of a prime minister, a pleader, a dancing girl, a civil servant,
an engineer or a surgeon, whelhei the education impaited at
the family expense be oidinary or specialised, foi all of them
would be ecjually pailible (/). Accoidmg to the equitable
lule of Jiniutavahana, which has come to prevail, that
whatever is gained without detriment to the famil\
estate is self-acquisition, the gains made by a copaicener

(p) Mit., I, IV 7, 8, 9 14, Mandlik, p. 214, note (4). This js
almost the only question on which Vijnancbvdrd is luither logical noi
progressive

iq) Ddyabliaga, M. 1, 44 50, 1, Stra. HL, 214; 2 Stra. H.L., 347.

(r) Metharam \. Hewachand (1918) 45 I.A., 41, 45 Cal., 666
(broker and bankei), Lakshman \. Janiiiabai (1882) 6 Bom, 225
(judge) , Krishnaji v Moro Mahadev (1891) 15 Bom., 32 (karkun or
clerk); Durga Dut v. Ganesh Diit (1910) 32 AIL, 305 (astrologer) »
Lachmm Kuar v Debt Prasad (1898) 20 All, 435 (army contractor);
Jugmohandas v Mangaldaf, (1886) 10 Bom , 528 (mill manager) ,

Luximon Row v. MuUar Row (1831) 2 Knapp 60 (prime minister);
Bai Manrrha v Narotamdab (1869) 6 Bom. H.C. R. (ACJ.), 1

(pleader), Durvasiilu v Diirvasiila (1872) 7 Mad HCK, 47 (vakil),
Chalakouda Alasani v (lhalakonda Ratnnt halam (1864) 2 M.TI C R ,
56 (dancing girl), Gokalchand v. Hiikumrhand (1921) 18 f A , 162,
2 Lah., 40 (Indian Civil Servant) , Dhanukdarec \ Ganpat (1868) 11
Beng. L.R., 201.

pAftA. 286. j

GAINS 6F LEARNtNC.

369

who has leceived eithei a specialised oi an ordinary
education at the expense of the family estate would
be impartible, if the gains themselves as distinguished from
the learning, were made without the aid of family funds.
But in Chalakonda v. Ratnachalam {$}, the earliest case on
the subject, the Madras High Court held that gains of learn-
ing imparted at the family expense and acquired while
receiving a family maintenance are coparcenary property.
The principle of this decision was reiterated in a later rase
where the gains of a Vakil were held divisible though he had
received from his father nothing more than a general
education (5^).

In a Madras case, however, where a Hindu had made a
large mercantile fortune, his claim to hold it as self -acquired
was allowed, though he had admittedly been maintained in
his earlier years, educated and married out of patrimonial
means (t ) . In a Bengal case where the defendant was
maintained at the family expense but did not use any funds
of the joint family and where it was contended that he
received his education from the joint estate, Mitter, J., said:
“the contention is nowhere sanctioned by the Hindu law,
and I see nothing in justice to recommend iI”(m). The
Bombay High Court explained the expression ‘gains of science
imparted at the family expense’ as “the special branch of
science which is the immediate source of the gains, and not
the elementary education which is the necessary stepping stone
to the acquisition of Al science” (v) . It would be seen from
the decisions that acquisitions made by a member of a family
were partible if he was originally equipped for the calling or
career in which the gains were made by a special training
at the expense of the patrimony. In M^haram v.
Rewachand (u;), it was held that the gains which were the
result, not of the education received at the expense of the
joint family but of the peculiar skill and mental ability of
a member educated at the expense of the family were not

(s) (1864) 2 M.H.C.R., 56; Boolokam v. Swornam (1881) 4 Mad.,
330 (dancing girl).

(si) Gungadharudu v. Narasamma (1871) 7 47.

(^) Chellaperoomall v. Veeraperumall 4 Mad. Jur., 54, affirmed on
appeal i6. 240.

(tt) Dhunookdharee v. Gunput (1868) 11 Beng. LR., 201, 10 W.R.,
122, Pauliem Valoo v. PauUem Soorjah (1876) 4 LA., 1()9, 1 Mad., 252.

iv) Lakshman v. Jumnabhai (1882) 6 Bom., 225, 243; Krishnaji v.
Moro Mahadev (1891) 15 Bom., 32. See also Lakshman v. Debi
Prasad (1898) 20 AIL, 435.

iw) (1918) 45 I.A., 41, 45 Cal, 466 (banker)

26

370

tHB JOINT TamIlV.

[chap. VhI,

The Hindu
Gams of
Learning Act.

partible. In the latest case on the subject, however, the
Judicial Committee said: ‘Trorn mamtenancc out of family
funds during the period of education, the basis of partibilily
changed to the receipt of the education itself at the family
expense, and then education generally was narrowed to
specialised education, which is now the basis.” They held
that there was no valid distinction between a direct use of the
joint family funds and a use which qualifies the member to
make the gams by his own efforts (^). As the above decision
left the Hindu law on the subject in a very unsatisfactory
state, in order to remove doubts and to amend the law, the
Indian Legislature passed the Hindu Gams of Learning
Act, 1930.

§ 289. The Act provides that no gains of Icaining shall
be held not to be the exclusive and sepaiate piopeity of the
acquirer, merely by reason of his learning having been
imparted to him by any membei of his family, or with the
aid of the joint funds of the family, or with the aid of the
funds of any member. The fact that the acquirer or his
family, while undergoing education or training, was main-
tained by the funds of the joint family or of any member of
it, is made wholly immaterial. The definition of ‘gains of
learning’ as well as the wording of Section 3 viz , ‘shall be
held not to be’ instead of ‘shall not be’ and the limited scope
of the savings in Section \ make il clear that the Act has a
laigc retrospective operation and applies to all cases other
than those stiictly governed by Section 4. The Act expressly
applies not only to cases wheie a man was educated and main-
tained at family expense before its commencement but also to
cases where the acquisitions were made before the Act. The
older law can only apply to any transfer of piopeily, paililion,
agreement for partition made before the Act and to proceed-
ings pending at its commencement in connection with rights

(x) Gokal Chand v. Hukumthand (1921) 48 I A., 162, 2 Lah , 40
(Indian Civil Servant). The Judicial Conimillee observed in
this case. “They conceive it to be of the highest importance
that no variations or uncertainties should be introduced into the estab-
lished and widely recognised laws, which govern an ancient Eastern
civilisation, and least of all, in matters affecting family rights and duties
connected with ancestral customs and religious convictions.” The great
advance in Hindu opinion and feeling on the subject during the
course of a generation can be measured by remembering that while in
1901, Sir Bhashyam Iyengar’s Hindu Gains of Learning Bill, passed by
the Madras Legislative Council had to be vetoed by the Governor of
Madras, a more drastic measure sponsored by Dr. M. R. Jayakar, now a
member of the Federal Court, was passed by the Central Legislature
in 1930 without even a word of protest.

PAKAs. 289-290.]

CftOWN GRANTS.

371

or liabilities arising under such transfer, partition or
agreement (y ) . {Ante § 47) .

§ 290. Estates conferred by Government in the exercise
of their sovereign power become the self-acquired property of
the donee, whether such gifts are absolutely new grants, or
the grant to one member of the family of property
previously held by another, but confiscated ( 2 ), unless some
contrary intention appears from the grant (a), or the conduct
of the donee and the other members of his family shows that
they treated it as joint family property (6). But where one
member of a family forcibly dispossesses another who is in
possession of an ancestral zamindari, and there is no legal
forfeiture, nor any fresh grant by a person competent to
confer a legal title, the new occupant takes, not by self-
acquisition, but in continuation of the former title (c). And
where a confiscation made by Government was subsequently
annulled, and no grant to any third peison was ever made,
it was held that the old title revived, for the benefit of all
persons capable of claiming under it (d) . So a grant made
by Government to the holder of an unsettled palayam which
merely operates as an ascertainment of the State claim for
levenue, and a lelease of the reversionary right of the Crown,
is a mere continuance of the old estate (e). But where a

(y) In ihe following cases, the applicability of the Act was not
dibciibsed. Jai Dayal v. Narain Das A.l.R. 1932 Lah., 127; Rangachari
V. Narayana Aiyar A.l.R. 1936 Mad., 119; Uanso Pathak v. Harmandt
(1934) 56 All., 1026 (purohit).

(z) Katama Natchiar v. Rajah of Shivaganga (1863) 9 M.LA., 606,
2 W.R. (P.C.), 31, Beer Pertab v. Maharajah Rajender (1867) 12
M.I.A., 1 (Hunsapore Case); V enkatarayadu v. V enkataramayya (1892)
15 Mad., 284. As to grants in Oudh after the Confiscation
of 1858, and under Act I of 1869 (Oudh Estate Act), see Thakurain
Sookraj V. The Government (1871) 14 M.I.A., 112; Hurpurshad v.
Sheo Dyal (1876) 3 I.A., 259, Hardeo Bux v. Jawahir (1877) 4 LA.,
178, (1879) 6 I.A., 161; Bnjindur v. Janki Koer (1877) 5 I.A., 1;
Thakur Shere v. Thakurain (1878) 3 Cal., 645; Gouri Shunker v.
Maharajah of Bulrampore (1878) 6 LA., 1, 4 Cal., 839; Mulka Johan
V. Deputy Commissioner of Lucknow, ib,, 63; Mirza Jehan v. Nawab
Afsiir Baku, ib,, 76, 4 Cal., 727; Seth Jaidial v. Seth Siteeram (1881)
8 LA., 215; Ramanund v. Raghunath (1882) 9 LA., 41, 8 Cal., 769,
Pirthi Pal V. Jewahir Singh (1886) 14 I. A., 37. A grant of a jaghir
is presumably only for life, Gulabdas v. Collector of Surat (1878)
6 LA., 54, 3 Bom., 186.

(а) Mahant Govind Rao v. Sitaram (1898) 25 I.A., 195, 21 All., 53;
Bahu Rani v. Rajendra Baksh (1933) 60 I. A., 95, 8 Luck., 121 (gift
to two brothers m severalty, not joint family property).

(б) Kedar Nath v. Pathan Singh (1910) 32 All., 415.

(c) Yanumula v. Boochia (1870) 13 M.LAn 33, 13 W.R., P.C. 21.

(d) Mirza Jehan v. Badshoo Bahoo (1885) 12 lA., 124, 12 Cal., 1.

(e) Narayana v. Chengalamma (1887) 10 Mad.» 1.

Government

Grants.

372

rHE JOINT FAMlLV.

[chap, vni,

Recovery of

ancestral

property.

Result to
recoverer.

kainam service mam is enfranchised, a quit-rent being
imposed in lieu of service and an mam title-deed granted
to the last holder of the office, the lands are his separate
property and are not subject to any claim to partition by
other members of the joint family (/) .

§ 291. Another mode of self-acquisition, which is not
very likely to arise now, is where one coparcener unaided
by the others or by the family funds, recovers, with the
acquiescence of his co-heiis, ancestral property which had
been seized by others, and which his family had been unable
to recover (gj . In order to bring a case within this rule,
the property must have passed into the possession of
strangers, and be held by them adversely to the family.
It is not sufficient that it should be held by a person claiming
title to hold it as a member of the family, or by a stranger
claiming under the family, as for instance by mortgage. So
also the recovery by one co-heir for his otvn special benefit
is only permissible where “the neglect of the coparceners to
assert their title had been such as to show that they had no
intention to seek to recover the property, or were at least
indifferent as to its recovery, and thus tacitly assented to
the recoverer using his means and exertions for that purpose,
or upon an express understanding with the recoverer’s
coparceners.” “The recovery, if not made with the privity
ot the co-heirs, must at least have been bona fide and not
in fraud of their title, oi by anticipating them m their
intention of recovering the lost property.” Finally, it must
be an actual recovery of possession, and not meiely the
obtaining of a decree foi possession (h) ,

As to the result of such a recovery, theie are two rules
m the Mitakshara, At ch. I, 5, § 11, the author, referring
to Manu, ix, § 209, makes the property of the grandfather

(/) Venkata Jagannadha v. Veerabhadrayya (1921) 48 I A., 244,
44 Mad, 643, approving Venkata v. Rama (1885) 8 Mad., 249, F.B. and
overruling Gunnaiyan v. Kamakshi Ayyar (1903) 26 Mad., 339, and
Pingala Lakshmipathi v. Bommireddipalli Chalamayya (1907) 30 Mad.,
434, F.B.; Dattatraya v Shankar (1938) K) Bom. L.R., 118.

(g) Manu, IX, §209, Mitakshara, I, iv, 3, 4, 6. I, v, 11, Daya
Bhaga, vi, §§31-37; D.K.S , iv, 2, §§6-9, Raghunandana, v, 29-31,
Vyav. Mayukha, IV, vii, 3.

(/r) Visalatchy v. Anmtsamy (1870)5 Mad. H.C , 150, Bajaba v.
Tnmbak Vishvanath (1910) 34 Bom, 106, Bisheswar v Shitul, 8 W.R.,
13; SC., confirmed on review, mbnominet Bissessur v Seetuly 9
WR, 69, Bolaket v. Comt of N^'ardsy 14 W.R , 34, Jugnwhundas v.
Vlangaldas (1886) 10 Bom., .528, Muttu k adiiganadha v. Doraibinga
(1881) 8 LA, 99, 3 Mad, 290, 300; Naraganti v. V enkatachalapati
(1882 ) 4 Mad, 250, 259, Shamnarain v. Raghubirdayal (1878) 3 Cal.,
508, Surebthandra v. Bai Ishwari (1938) 40 Bom. L.R., 127.

PARAS. 291-293.]

BURDEN OF PROOF.

373

which has been recovered by the father belong exclusively
to him as against his sons. At ch. I, 4, § 3 Vijnanesvara,
with reference to the case of a son recovering ancestral pro-
perty which has not been recovered by his father, cites a text
of Sankha as establishing that “if it be land, he takes the
fourth part, and the remainder is equally shared among all
the brethren”. If the property recovered be movable, the son
who recovered it takes the whole.

§ 292. An intermediate case between self -acquired and
joint property is the case, resting upon a text of Vasishtha,
in which property acquired by a sin^e coparcener, at the
expense of the patrimony, is said to be subject to partition,
the acquirer being entitled to a double share {i) . The
general principles laid down by Vijnanesvara seem to exclude
the idea that any special and exclusive benefit can be secured
to any co-heir by a use of the family property (;). Mr. W.
MacNaghten states that under Benares law no such benefit
can be obtained, whatever may have been the personal
exertions of any individual, but that the rule does exist in
Bengal (A;).

§ 293. “The normal state of every Hindu family is
joint. Presumably every such family is joint in food,
worship and estate. In the absence of proof of division, such
is the legal presumption. But the members of the family
may sever in all or any of these three things” (/). Of course
there is no presumption, that a family, because it is joint
possesses joint property or any property (m). The burden
of proving that any particular property is joint family pro-
perty, is in the first instance upon the person who claims
it as coparcenary property (n). Where the possession of a
nucleus of joint family property is either admitted or proved,
an acquisition made by a member of the family is presumed

(i) “And if one of the brothers has gained something by his own
effort, he shall receive a double share.” Vasishtha, xvii, 51 ; Mitakshara,
i, 4, §29; Daya Bhaga, vi, 1, §§27--29; Raghunandana, i, 20, v, 18.

(/) Mit., i, 4 §§ 1-fi.

(A) 1 W. MacN, 52, 2 W. MacN., 7, n., 158, 160, n., 162 n.

(/) Neelkisto Deb v. Beerchunder (1869) 12 M.I.A., 540; Naraganty
V. Vengama (1861) 9 M.I A., 92; Rewan Prashad v. Radhahai (1856)
4 M.I. A., 137, 168; Nageshar v Ganesha (1920) 47 I. A . 57, 70, 42 All.,
368; Raghubar Dayal v. Ramdulare (1928) 6 Rang, 327

(m) Annamalai Chetty v. Subramama Chetty A.T.R., 1929, P.C., 1,
56 M.L.J., 435.

(n) Rai Shadilal v. Lai Bahadur (1933) 64 M.L.J., 298, A.IJt.,
1933, P.C.. 85, Maganlal v. Krishna Bibi A.I.R. 1935 All., 303;
Kaniala Kant v. Madhavji A.I.R., 1935, Bom., 343; Mt. Brij Kunvar v.
Sankata Prasad (1930) 5 Luck., 4()0|, A.I.R. 1930 Oudh, 639.

Acquisitions
aided by
joint funds.

Presumption
of jointness.

Onus on
coparcener to
prove nucleus.

374

THE JOINT FAMILY.

[chap, viir,

Possession of
joint funds
not conclusive.

to be joint family property. But this is subject to the limit-
ation that the joint family property must be such as with its
aid the property in question could have been acquired. And
it is only after the possession of an adequate nucleus is
shown, the onus shifts on to the person who claims the pro-
perty as self-acquisition, affirmatively to make out that the
property was acquired without any aid from the family
estate (o).

§ 294. In a case in the Supreme Court of Bengal,
Grant, J., said: “Where the property descended is incapable
of being considered as the germ whose improvement has
constituted the wealth subsequently possessed, this wealth
must evidently be deemed acquired. An ancestral cottage
never converted, or capable of conversion to an available
amount into money, in which the maker of the wealth had
the trifling benefit of residing with the rest of the family
when he commenced turning his industry to profit, — so of
other things of a trifling nature” ip). Of course the
contiaiy would be held, if it appeared that the iinome of the
joint property was large enough to leave a surplus, after
discharging the necessary expenses of the family, out of
which the acquisitions might have been made (q) . And
purchases made with money borrowed on the security of the

(o) Ram Kishan v Tunda Mai (1911) 33 All., 677, Veil'

kataramayya v. Seshamma [1937] Mad, 1012, following San-
karanarayana v, Tangaratna A I R., 1930, Mad , 662 and

Satchidanandam v. Subbarazu, 1930, MWN, 1016, Habubhai
Girdhanlal v. Vjamlal 11937] Bom, 708, Yethirajulu v Covindarazulii
(1916) 32 TC, 12, FB, Vadamalai v. Subramania Chettiar A.T R ,
1923, Mad., 262; Kannammal v Ramatilakammal A.I.R., 1927, Mad.,
38; Narayan Rao v V enhatahnshna Rao (1915) 27 ML.]., 677, Ramiah
V. Mahalakshmamma (1932) .35 MLW., 30, Sandanamw Somasundaram
(1937) 1 MLJ, 364, Surajkumar v Jagannath AIR 1935

All., 67, Sivarath v. Ghurki (1931) 53 All., 603; Sanival Das v
Kure Mai (1928) 9 Lah , 470, Tuhi Ram v Narain Das AIR 1931
Lah , 113, Laddha Singh v. Mangal Singh A.I R , 1933 Oiidh, 166,
Madho Tewari v Mata Dm A.T R., 1934, Oiidh, 293; Mis Johnstone v.
Gopal Singh (1931) 12 Lah, 546, Mool Raj v. Manohar Lai A.I.R.
1938 Lah., 204, Vythianatha v. Varadaraja (1938) 1 M.L J., 216; Sher
Mohamed Khan v Ram Ratan AIR. 1938 Nag., 87 In Lai Bahadur v.
Kanhayalal (1907 ) 34 I A., 65, 29 All., 244, where it was established that
there was considerable nucleus, the onus was laid upon the acquirer. So
too in Rajangam v. Rajangam (1923) 50 I A., 134, 141, 46 Mad., 373.
In Dharam Das v. Shamasoondari (1843) 3 MIA, 229, there was
apparently sufficient joint family property

ip) Gooroochurn v. Goluckmoney, Fulton, 16.5, 181, per curiam,
Meenatchee v. Chetumbra Mad., Dec. of 1853, 63; Jadoomonee v.
Gungadur 1 Bouln , 600, V. Darp., 521, Ahmedbhoy v Cassumbhoy
(1889) 13 Bom,, 534; Rampershad v. Sheochurn (1866) 10 M LA.,
490, 505.

(q) Sudanund v. Soorjoo Monee (1869) 11 W R., 436; Tottempudi
V enkatarqtnam v. Seshamma (1904) 27 M^td., 228, 234,

PARA. 294.]

PROOF OF SELF-ACQUISITION.

375

common property will belong to the joint family, the
members of which will be jointly liable for the debt (r). But
it would be otherwise if the loan was made on the sole credit
of the borrower, or even if the loan was made out of the
common fund, under a special agreement that it was to be
at the sole risk of the borrower, and for his sole benefit (s).

A house erected by a coparcener with his own
separate funds on an ancestral site will be his separate pro-
perty in the absence of any intention to make the house
joint family property and if possible, the portion of the site
on which the building stands should he allotted to him at a
partition (0- As premia paid for insurance policy are
presumed to be a man’s property, the policy necessarily is
his separate property as it certainly is when the premia are
paid out of his salary or earnings (u). In a case in Madras,
the opinion was expressed that where money is given to a
member of a family by the manager from the family funds
to be spent by him for his own personal use, any profit made
by him can hardly be said to be in detriment of the joint
family porperty (v). The Court relied upon the decision of
the Privy Council in Lachmeswar Singh v Manowar H ossein
(w) for its view that a profit made by a member of a joint
family from the enjoyment of joint property, without
detriment to it, is not joint family property. That
was a case of co-owners and not of a Mitakshara joint
family. It seems however reasonable that a coparcener, who
receives a sum of money from the manager for his legitimate
expenses and saves a part of it by his thrift, should be
allowed to treat it as his exclusive property to be used as he
likes, without being under a duty to return it to the family
chest. But it would be a different case altogether
where he receives family funds, otherwise than as a loan,
to enable him to make acquisitions for his own benefit.
Where a concern is carried on with coparcenary funds and
the share of an individual coparcener is debited with the sums

(r) The detriment to the common property is obvious.

( 5 ) Rai Nur Singh v. Rai Narain (1871) 3 N.-W.P., 218; Raccho
Kunwar v. Dharam Das (1906) 28 AIL, 347, 354.

(f) Periakaruppan Chetty v. Arunachala (1927) 50 Mad., 582;
Nuthehary Das v. Nanilal Das A.I.R. 1937 P.C., 61, 41 C.W.N., 613
(a Dayabhaga case).

(u) Mahadeva v. Rama Narayana (1903) 13 M.L.J., 75; Balamba
V. Krishnayyan (1914) 37 Mad., 483; Rajamma v. Ramakrishnayyar
(1906) 29 Mad., 121; Sugandhabai v. Kesarbai A.I.R. 1932 Nag., 162.

(v) Bengal Insurance & Real Property Co. v. Vefayammal [1937]
Mad., 990, A.I.R. 1937 Mad., 571.

itv) (1892) 19 I,A., 48, 19 Cal, 253,

376

THE JOINT FAMILY.

[chap. VIII,

Onus of
proof.

employed, the intention may be that the concern should
belong to the individual member (x).

According to the text of the Mitakshara (I, iv, 6), where
a marriage is performed at the family expense, any con-
sideration received from the bridegroom as in the asura
marriage will be coparcenary properly. In Ramaswarni
Chetti V. Palaniappa (y), it was held that a coparcener
giving away his son in adoption was a detriment to the family
and the consideration received by him from the adopter was
not his separate property but joint family property. The
analogy of the asura marriage relied upon by the Court can
have no application, for the Mitakshara makes it plain that
unless the marriage was celebrated at the expense of the
family, the money received for giving the bride in marriage
would not be joint family property. The other ground of
decision that the transfer of a son is a detriment to the family
would seem to be equally wrong; for the father alone has the
power to give away his son in adoption and to say that if
the boy had remained in the family and there had been
no partition, he would have added to its wealth seems
inelevanl. In anv case, detriment is too remote.

§ 295. Where the property is admitted to be originally
self-acquisition but is alleged to have been thrown into the
common slock, the onus of proving such a case is heavily on
the party asserting it (y^). Even where it appears that the
family had possession of sufficient ancestral property but, at
the same time, some members of the family appeared to have
separate funds or acquisitions or dealings of their own, such
a state of things shifts the onus on to those who claim as
joint family properly particular acquisitions which have been
allowed to be tieated by individual coparceners as their
own iz). On the othei hand, wheie it is shown that there

(v) Manickam Chetty v Kamalam (1937) I M L J , 95

(y) A,I R , 1924, Mad, 354. 18 M f. W, 656 See note (^), p 365
(>i) Visvasundara Rao v Pallam Raja AIR, 1933, Mad., 565,

Jot Singh V. Janga Singh AIR, 1933, Oudh. 482, Govind Prasad
V. Shanti Swarup A l.R 1935 All, 778. Mool Raj v Manohar Lai
AT.R 1938 Lah, 204, Vythianatha v Vuradaraja (1938) 1 MLJ, 216.

(z) Bodh Singh v Ganeshy 12 BLR, 317, Bissessiir Lall v. Luch-
messur (1879) 6 LA , 233, 5 CLR, 477, Muran v Mukund (189 )
15 Bom , 301 , A fortwriy where there had been admitted self acquisi-
tions and an aciiidl partition, or a partition among some members only
was admitted, the onus would lie upon any member who sues subse-
quently for a share to make out his case. Banoo v. Kashiram (1878)
3 Cal., 315, P.C.; Radhachurn v. Kripa (1880) 5 Cal., 474, Obhoy
Churn V. Gobind (1884) 9 Cal., 237; Upendra v Gopanath ib , 817,
Balakrishna v. Chintamani (1887) 12 Cal. 262; Dattatraya v Shankar
A.I.R 1938 Bom., 250, 40 Bom L.R., 118 As to the presumption in
the Punjab, see Moolraj v Manohar Lai A l.R. 1938 Lah , 204.

PARAS. 295-296.] DAYABHAGA FAMILY.

377

was suflScient coparcenary property with the aid of which
the acquisition could have been made, the presumption that
it is joint property is not rebutted, by showing that it was
purchased in the name of one member of the family or that
there are receipts in his name respecting it; for all that is
perfectly consistent with the notion of its being joint family
property (a).

§ 296. When we turn to the joint family under the
Dayabhaga law, we find that its bases are, in important
respects, different from those of a Mitakshara joint family.
The Mitakshara conception of the son’s right by birth is
altogether alien to it. Jimutavahana and his school do
not recognise the distinction between unobstructed and
obstructed heritage. There is therefore no right of survivor-
ship: on the death of the father the sons take his estate
strictly by inheritance (6). As a consequence, the sons have
no right, during the life of their father, to claim a partition
even in respect of the ancestral property (c) . Where property
is held by a father as head of an undivided family, his issue
have no legal claim upon him or the property, except for
maintenance. The father can dispose of the property whether
ancestral or self-acquired as he pleases (d ) ; the sons can
neither control, nor call for an account of his management.
It follows therefore that under the Dayabhaga law, a father
and his sons do not form a joint family in the technical
sense having coparcenary property. But as soon as it has
made a descent, the brothers or other coheirs hold their
shares in quasi-severalty. Each coparcener has full powers
of disposal over his share which is defined and not fluctuat-
ing with births and deaths as in the case of a Mitakshara
family and his interest, while still undivided, will on his
death pass on to his own heirs, male or female or even to
his legatees (e).

(a) Dhurn Das v. Mt. Shama Soondan (1843) 3 M.I.A., 229, 240;

Gopee Kist v Gunga Prasad (1854) 6 MIA., 53; Prankishan v
Mathura (1865) 10 M.I.A., ^103, Umrithnath v. Goureenath (1870) 13
M.I.A., 542; Rampershad v. Sheochurn (1865) 10 M.I.A., 490;

Johnstone v. Gopal Singh (1931) 12 Lah , 546; A tar Singh v. Thakar
Singh (1908) 35 I.A., 206, 35 Cal., 1039; Bholanath v. Ajoodhia (1874)
12 B.L.R., 336; Gajendar v. Sardar Singh (1896) 18 All., 176.

(b) Dayabhaga I, 30; Raghunandana I, 5-14; D.K.S. I, 2, 4.

(c) Dayabhaga II, 8; Raghunandana I, 34-35.

(d) Dehendra v. Brojendra (1890) 17 Cal., 886; Gouranga Sundar
Mitra v. Mohendra Narayan A.I.R. 1927 Cal., 776; Hemchandra Ganguli
V. Matilal Ganguli (1933) 60 Cal., 1253.

(e) Soorjeemoney v. Denohundoo (1857) 6 M.I.A., 523, 553.

Dayabhaga
joint family.

Differences

from

Mitakshara

family.

37«

THE JOINT FAMILY.

[chap. VIII,

Before the Hindu Woman’s Rights to Property Act, 1937,
the shaie of a coparcener under the Dayabhaga law devolved,
on his death without issue, on his widow. Now, however,
under that Act, the share of a coparcener in a Dayabhaga
joint family, along with his other separate property, will,
on his death intestate, pass to his widow along with his male
issue; if he dies without male issue, it will pass to his widow,
daughter and daughter’s son, as before ( § 591 ) .

Similantirs lo

Mitaksliara

family.

§ 297. Where a man dies leaving a son, a grandson
whose father is dead and a great-grandson whose father and
grandfather are dead, all the three take his property as his
heirs and form a coparcenary. But a grandson whose father is
alive and a great-grandson whose father and great-grandfather
are alive have no rights in the coparcenary property (/) . A
joint Hindu family under the Dayabhaga is, like a Mitakshara
family, normally joint in food, worship and estate. In other
lespects too, there is little or no difference between a joint
family under the Dayabhaga law and one under the Mitakshara
law. The property of a joint family under the Dayabhaga, as
under the Mitakshara law, may consist of ancestral property,
of joint acquisitions and of self-acquisitions thrown into the
common stock fg). The doctrine of self-acquisition in con-
nection with a Dayabhaga family is the same as in a Mitak-
shara family. The rules as to onus and presumptions
applicable to a Mitakshara family and its coparcenary
property apply also to the case of a Dayabhaga family and
its joint property subject to one apparent exception (A). In
the case of a family of father and sons which is not a joint
family in the technical sense, there is no presumption that
the family is joint or that it has any joint property or that
any acquisition in the name of a son, even when there is
property, is the property of the members of the family fi).
According to the Bengal authorities, a cosharer who recovers

(/) Dayabhaga IT, 10, III, i, 1, 8, 19, DKS, I, i, 3 and 4.

Rnjamkantn Pal v Jagamohan Pal (1923) 50 TA, 173, 50
Cal , 439 following the Mitakshara case of Suraj v Ratan Lai (1917)
44 I A., 201, 40 All , 159 Gooroochurn v. Goluckmoney (1843)
Foulton 164, Ind Decisions (old senes) 743.

(h) Ihmchandra v Matilal (1933) 60 Cal, 1253, 1258 following
Fthirajulu v Govwdarajnhi (1915) 32 T C., 12, Haragouri Batabynl
V. Ashiitosh Batabyal AIR. 1937 Cal., 418. See also Jasoda Sundari

V JmI Mohun Basu AIR 1926 Cal , 361 where the decision in Sarada

V Mahananda (1904) 31 Cal, 448 is explained.

(i) Sarada Prasad Roy v. Mahananda (1904) 31 Cal., 448. (The
headnote in Saradaprasad Roy v Mahananda (1904) 31 Cal., 448, is
rntin-ed bv Mukherii, J, in AIR 1926 Cal, 361, 362 supra, as
entirely incorrect,) Govtnd Chandra v Radha Kri^to (1909) 31 AH,
477,

PAHAS. 297-298.] MODE OF ENJOYMENT.

379

ancestral land, lost to the family, takes a one-fourth share
first and then shares the residue equally with the others (;),
In Gooroochurn v. Goluckmoney (A), it was held (1) that
the sole manager of the joint family property is, by reason
of his management, entitled to no increased share; (2)
that the skill and labour contributed by one joint sharer
alone in the augmentation or improvement of the common
stock establishes no right to a larger share; (3) that the
acquisition of a distinct property without the aid of the
joint funds or joint labour gives a separate right, and creates
a separate estate; (4) that the acquisition of a distinct pro-
perty with the aid of joint funds or of joint labour gives
the acquirer a right to a double share and (5) that the
union with the common stock of that which might otherwise
have been held in severalty gives it the character of a joint
and not of a separate property. But to entitle the acquirer
to a double share, the property acquired must be a distinct
one and the assistance derived from the joint funds must
be of little consideration. Jimutavahana rests the doctrine
of the double share of the acquirer, not upon the text of
Vasishtha, which he seems to take as applying to self-acqui-
sition, properly so called, but upon a text of Vyasa. “The
brethren participate in that wealth, which one of them gains
by valour and the like, using any common property, either
a weapon or a vehicle” (/). Here the meritorious cause of
the acquisition is the brother himself, the assistance derived
from the joint funds being insignificant. These views were
approved by later decisions of the Bengal High Court im).

§ 298. The fourth subject of examination relates to the
mode in which the joint family properly is to be enjoyed
by the coparceners. Lord Westbury in a judgment, which
has become a classic, said: “According to the true notion
of an undivided family in Hindu law, no individual member
of that family, while it remains undivided, can predicate of
the joint and undivided property that he, that particular
member, has a certain definite share. No individual member
of an undivided family could go to the place of the receipt
of rent, and claim to take from the collector or receiver
of the rents a certain definite share. The proceeds of un-

(/) Dayabhaga VI, ii, 36-39; D.K.S., IV, 2, 7, 8, 9.

(Ar) (1843) Fulton 165; 1 Ind. Dec, (old series) 743, approved in
Soorjeemoney v. Denobundo (1856) 6 M.I.A., 539.

(/) Dayabhaga VI, ii, 36-39; II, 41; VI, i, 28; the rule is the same
in the Mitakshara I, iv, 30-31.

(m) Purtab Bahaudur v. Tiluck Daree 1 S.D., 172 (236) ; Sree
Narain v. Goorooprasad 6 W.R., 219; Sheo Dayal v Jaddonath 9 W.R.,
61. Mchand ShoMi v. St^arnamoyee Pasi (l^) 13 C.W.N., 1133,

Enjoyment
of family
property.

380

THE JOINT FAMILY.

[chap. VIII,

Managing

member.

Manager*^
legal position.

divided property must be brought, according to the theory
of an undivided family, to the common chest or purse, and
there dealt with according to the modes of enjoyment by
the members of an undivided family” f/i).

So long as the members of a family remain undivided, as
a general rule, the father of a family, if alive, or in his
absence the senior member of the family is entitled to
manage the joint family property (o) With the consent of
the others, a junior member of the family may become the
manager of the family properl) or there can be more than
one managing member (p)

The managing member is entitled to full possession of the
joint family property and is absolute in its management (q)
He has the power and the right to represent the family in all
transactions relating to it (r) He is entitled to act on behalf
of the family without the consent of the othe]; members and
even in spite of their dissent; and when his act is within his
legal authority and for family purposes, it binds the others.
The other members, as long as the family is undivided, have
only a right to maintenance and residence. They cannot call
for an account, except as incident to their right to a parti-
tion, nor can they claim any specific share of the income,
nor even require that their maintenance or the family outlay
should be in proportion to the income. An absolute discre-
tion in this respect is vested in the managei

§ 299 The position of a karta or manager is sui generis;
the relation between him and the other members of the
family is not that of principal and agent, or of partners. It
is more like that of a trustee and cestui que trust (s) , But
the fiduciary relationship does not involve all the duties

(n) Appovier v Rama Subba 4iyan (1866) 11 M.I.A., 75, 89,
8 W.R (PC.), 1

(o) Thandavaraya v Shunmugam (1909) 32 Mad, 167, Bhaskan
Kasavarayudu v Bhaskaran (1908) 31 Mad., 318; Lala Surja Prasad v.
Golabchand (1900) 27 Cal, 724, 743, Gajendra Narain v. Harihar
Narain (1908) 12 C W.N , 687, Suraj Bansi v. Sheo Prasad (1880)
6 I A , 88, 5 Cal, 148, 165, Kishen Prasad v Han Narayan (1911)
38 I A . 45, .13 Cal, 272. Venkatanarayan v. Somaraju [1937] Mad,
880 F.B.

ip) Mudit V Ranglal (1902 ) 29 Cal., 797; Ramaknshna v Manikka
(1937) 1 M.L.J, 587

(9) Bhaskaran Kasavarayudu v Bhaskaran (1908) 31 Mad., 318.

(r) V enkatanarayan v Somaraju [1937] Mad., 880, FB.; Vithu
Dondi V Babaji (1908 ) 32 Bom., 375; Hanlal v. Munmam Kunwar
(1912) 34 All., 549, 554, F.B.

(s) Annamalai Chetty v. Murugasa Chetty (1903) 30 I.A., 220,
26 Mad . 544, 553.

PAHA. 299. j

t»OStTlON OF RA^TA.

38l

which are imposed upon trustees. In the absence of proof
of direct misappropriation, or fraudulent and improper con-
version of the moneys to the personal use of the manager,
he is liable to account only for what he has received and not
for what he ought to or might have received if the moneys had
been profitably dealt with (/) . So long as the manager of
the joint family administers the funds for the purposes of
the family, he is not under the same obligation to economise
or to save, as would be the case with an agent or trustee (n) .
If he spends more on family purposes than what the other
members approve of, the only remedy of the latter is to have
a partition. The account is then taken upon the footing of
what has been spent, and what remains, and not upon the
footing of what might have been spent, if frugality and skill
had been employed (v)» Besides the expenses of manage-
ment, realisation and protection of the family estate, the
family purposes aie ordinarily maintenance, residence, edu-
cation, marriage, sraddha and religious ceremonies of the
coparceners and their families (m;). The expenses of each
coparcener or his branch cannot in law, in the absence of
usage, be debited to the particular coparcener (:r). The
manager can spend for family purposes more on one branch
ot the family than on another and his discretion is final.
But, he cannot misappropriate the family property
or its income or misapply them to purposes which are not
family pui poses even on a liberal construction (y). As long
as he applies the funds at his disposal for family purposes,
the head of the family cannot in general be called on to de-
fend the propriety of his past transactions (z) , A managing

(t) Perrazu v. Subbarayudu (1921) 48 LA., 280, 287, 288, 44 Mad.,
656; Kandasami Asari v. Somaskanda (1912) 35 Mad., 177 (he is not
an agent), Sinkantlal v. Sidheswari (1937) 16 Pal., 441, Muhammad
V. Radheram (1900) 22 AIL, 307, 317.

iu) Bhowani v. Jagannath (1909) 13 C.W.N., 309, 313.

iv) Tarachand v. Reebram (1866) 3 M.H.C., 177; Jugmohandas v.
Sir Mangaldas (1886) 10 Bom., 528; Damodardas v. Uttamram (1893)
17 Bom., 271; Balakrishna Iyer v. Muthusami Iyer (1908) 32 Mad..
271; Knshnayya v. Guravayya (1921) 41 M.L.J., 503; The Official
Assignee v. Rajabadar (1924) 46 M.L.J., 145.

(w) Kameswara Sastri v. Veeracharlu (1911) 34 Mad., 422.

(x) Ramnath v. Goturam (1920) 44 Bom., 179; Abhayavhander v.
Pyari Mohun (1870) 5 Beng. L.R., 347, 349, F.B.

(>) Narendranath v. Abani Kumar (1937) 42 C.W.N., 77; per Sir
Walter Schewabe in Official Assignee v. Rajabadar (1924) 46 M.L.J.,
145, 147, see cases cited in note (v) supra. For a case where account
was ordered, see Kristnayya v. Guravayya (1921) 41 M.L.J., 503.

( 2 ) Bhowani v. Jaggeniath (1909) 13 C.W.N., 309, Official

Assignee v. Rajabadar (1924) 46 M.L.J., 145; see post §416.

Right to
spend.

Not

accountable
for past
transactions.

382

THE JOINT FAMILY.

[chap. Vlll,

member, it hab been held, is not bound to keep accounts (a) .
Where the propeities or the transactions of the family are
such as not to make it necessary that accounts should be
kept, this would seem to be the right conclusion; for, the
manager is not like a trustee or an agent. Where however,
the nature of the family business or the family properties
and dealings are such that it becomes necessary to keep
accounts, as without them it will be impossible to ascertain
the assets available foi a partition, the rules of justice and
equity would cast a duty on the managing member to keep
accounts.

Manager’s
position
under the
Dayabhaga.

The difference in the liability to account between an
agent and the managing member of a joint Hindu family
was illustrated in a Madras case (b) where there was an
agreement between three undivided brothers postponing the
partition of their joint estate for twelve yeais but providing
that the eldest of them should manage it and iL was held, on
that agi cement, that the manager was an agent foi the other
bi others accountable for the leceipts and expenses.

§ 300. Undci the Dayabhaga law, the powers of a
inanagei, the relations between him and the copaiceners and
the position of the coparcencis inter se as to the enjoyment
of the pioperty, as long as thcie is no paitition, are not
different from what they aie under the Mitakshaia law (c).
While a copaicenei m a Dayabhaga family has a definite
shaie, he is not entitled to ask for that shaie of the income
or to an account on the footing of his being a tenant in
common. It was laid down by the Supreme Court of Bengal
in an early case that each of the coparceners has a right
to call for a partition, but until such a partition takes place,
the whole remains common stock; the co-sharers being
equally interested m every pait of it (d) ; and this applies

(«) Ramanath v Gotiiram (1920) 44 Bom, 179, Official Assignee
V. Rajabadar (1924) 46 MLJ, 145, but tee Jyotibati v Lathmeswar
A.I.R. 1930 Pat., 260, Gobind Dubey v. Parameshwar A.I.R. 1921 Pat.,
487. These two latter decisions place the manager in the position
of a trustee which is not his position in law. See Perrazu*s case, (1921)
48 I.A., 280, 44 Mad., 656. Of course, where he keeps accounts, they
must be true and correct.

{b) Raja Setrucherla v. Raja Setrucharla (1899) 26 I.A., 147, 22
Mad., 470.

(c) J. C. Ghose, H L., 1, 433; Sarkar, H.L., 7th ed , 398-400, 520.

id) Raghunandana I, 21-29. “By reason of the right being common,
the text of Katyayana, which says ‘A coparcener is not liable for the
use of any article which belongs to all the undivided relatives,*
becomes consistent in its literal sense; inasmuch as his own right
extends over every article, accordingly there can be no theft in such
a case . . . All the coparceners are entitled to the fruits of all acts,

PARA. 300.J

KARTA UNDER DAYABilAGA.

383

to all those who come in, in the place of the original co-
sharers, by inheritance, assignment, or operation of law, for
they can take only his rights as they stand, including of course
the right to call for a partition (c).

In Abhaychandra v. Pyari Mohun (/), which was a case of
a Dayabhaga family, Mitter, J., said, “he (the manager)
is certainly liable to make good to them their shares
of all sums which he has actually misappropriated, or which
he has spent for purposes other than those in which the
joint family was interested. Of course, no member of a
joint Hindu family is liable to his coparceners for anything
which might have been actually consumed by him in
consequence of his having a larger family to suppoit, or of
his being subject to greater expenses than the others; but
this is simply because all such expenses are justly considered
to be the legitimate expenses of the whole family. Thus, for
instance, one m'ember of a joint Hindu family may have a
larger number of daughters to marry than the others. The
marriage of each of these daughters to a suitable bridegroom
is an obligation incumbent upon the whole family, so long
as it continues to be joint, and the expenses incuired on
account of such marriages must be necessarily borne by all
the members, without any reference whatever to respective
interests in the family estate”. Again in Nibaran Chandia v.
Nirupama (g), the same principles which are applied to a
Mitakshara family were applied to a Dayabhaga family
following the observation of the Judicial Committee in
Shookmoychandra v. Mano Harri {h). The principles laid
down by the Judicial Committee in Perrazu’s case (i) were
applied to a Dayabhaga case recently (y). The coparceners

cither temporal or spiritual, which aie performed with the use of the
joint property; since their right is common. This is affirmed also by
Narada: ‘Among undivided brothers, duties continue common, but
when partition takes place, their duties also become different’ (Daya-
tattva, 1. 24, 26).

(e) Soorjeemoney Do^&ee v. Dciiobundoo (1857) 6 M.I.A., 526, 539,
reversed by the Privy Council upon the construction of a will but
this proposition was not disputed. See too Chuckun v. Poran 9 W.R.,
483.

(/) (1870) 5 B.L.R., 347, F.B., 349, a Dayabhaga case. See per
Guha and Mitter, J.J., in Narendra Nath v. Abani Kumar Roy (1937)
42 C.W.N., 77, 80. Dwaraknath Mitter, J., refers to the text of
Raghunandana showing that it was a Dayabhaga case.

(g) (1921) 26 C.W.N., 517, 528.

(h) (1885) 12 I.A., 103, 11 Cal., 684.

(i) Arumilli Perrazu v. Subharayadu (1921) 48 I.A., 280, 44 Mad.,
656.

(/) Narendranath v. Abani Kumar (1937) 42 C.W.N., 77«

Of ordinary
member of
family.

384

nit JOINT FAx\ilLV.

[chap, vlii,

Full Bench
decision.

Right to an
account.

in a Dayabhaga family are not entitled to such an account as
tenants in common or members of a divided Mitaksbara family
will be entitled to; in the latter case, the person who, before
division, was in possession as managing member is strictly
bound to account for all receipts and expenses and ran take
credit only foi such expenses as have been incurred for the
necessity or benefit of the estate, and the net income will have
to be equally divided between him and the co-shaiers ( A:) .
The difference between a Mitakshara coparcenary and a
Dayabhaga coparcenary was explained in a recent case:
“Under the Dayabhaga law each coparcenei takes a defined
share. The essence of a copaicenary under the Mitakshara
law IS unity of otvnership^ whereas under the Dayabhaga law
the essence of a coparcenary is unity of possession. So long
as there is unity of possession, no coparcener can say that
a particular share of the property belongs to him That he
can say only after a partition. Partition thei^ according to the
Dayabhaga law, consists in splitting up joint possession and
assigning specific portions of the property to the several
coparceners . . If the family remains joint, no charge can
be made against any coparcener because, in consequence of
his having a larger family, a larger share of the joint income
was spent on his family. Such expenditure is considered to
be the legitimate expenditure of the whole family” (/).

In the Full Bench case of Abhaychandra v. Pyari
Mohan \m) already mentioned, two questions were referred
for decision: — (1) Whether the managing member of a
joint Hindu family can be sued by the ether members for
an account, and (it appearing that one of the plaintiffs was
a minor) ; (2) Whether such a suit would not lie, even if the
parties suing were minois, during the period foi which the
accounts were asked. Mr. Justice Mitter, in making the
reference said: “Suppose, for instance, that one of the mem-
bers of a joint family, with a view to separate from the
others, asks the manager what portion of the family income
has been actually saved by him during the period of his
managership. If the manager chooses to say that nothing
has been saved, but at the same time refuses to give any
account of the receipts and disbursements, which were
entirely under his control, how is the member, who is desir-

(/:) Sri Ranga v Srinivasa (1927) 50 Mad., 866, 874; see Yerukolav.
Yerukola (1922) 45 Mad, 648 (F.B.) ; Sarvothama Pai v. Govinda Pai
A I.R., 1937, Mad., 11.

(/) In the matter oj Canga Sugar, Ananda Mohan Shaha Q929)
33 C.W.N.. 1190, 1192.

(m) (1870) 5 B.L.R., 347.

t»AtlAS. 300-30i.] MANAGER REPRESENTS FAMiLV,

385

ous of separation, to know what funds are actually available
for partition? And according to what principle of law and
justice can it be said that he is bound to accept the ipse dixit
of the manager as a correct representation of the actual state
of things?” Both questions accordingly were answered in
the affirmative. The only difference that may possibly exist
as a result of this decision between the Dayabhaga law and
the Mitakshara law is that a Dayabhaga coparcener may sue
a coparcener for an account even before division (n) . Other-
wise there is no diffeience between the two systems as
legards an undivided coparcener’s right to an account as
against the manager or the kind of account which the
managei is bound to lendei (o).

§ 301. A necessary consequence of the corporate
character of the family holding is that, wherever any trans-
action affects that property, all the members must be
expressly or impliedly lep resented by the managing member
or must be parties to it; and whatever is done must be done
for the benefit of all, and not of any single individual. It
is well settled that the managing member of a family business,
or the managing members where there are more than one
have the power of making contracts, giving receipts, and com-
promising or discharging claims incidental to the business.
They can sue and be sued in all matters affecting that busi-
ness without joining the other membeis of the family and in
particular in icspect of contracts and transactions made in

(n) But s*ee ihe decision of the Supreme Couit of Bengal in
Soorjeemoney Dossecs case (1857) 6 M I.A., 523, 540* “The right to
demand such an account, when it exists, is incident to the right to
require a partition, the liability to account can only be enforced upon
a partition.”

(o) Narendrnnath v Abam Kumar (1937 ) 42 C.W N., 77, Soorjee-
money Dossee v Denobundo (1857) 6 M.I.A , 523; Harey Harey Smha
V. Han Chaitanya (1936 ) 40 C.W N., 1237; In the matter of Ganga
Sagar (1929 ) 33 (^.W.N., 1190, 1192, Nibaranchandra v Kiru-

pama (1921) 26 C.W.N., 517, 528. The learned Judges m

Balakrishna Iyer v. Muthiisami Iyer (1909) 32 Mad., 271, 274
were under a misconception as to the kind of account which
a coparcener is entitled to under the Dayabhaga law. Sri Ranga v.
Srinivasa (1927) 50 Mad., 866; Parmeshwar y. Gobind (1916) 43
Cal., 459; Tammi Reddi v. Gangi Reddi (1922) 45 Mad., 281, reversed
on another point in (1927) 54 I.A., 136, 50 Mad., 421; Sukh Deo v.
Basdeo (1935) 57 All, 949, Ramnath v. Goturam (1920) 44 Bom.,
179; Balakrishna v. Miithuswami (1909) 32 Mad., 271; Jyotibati v.
Lahshmeshwur (1929) 8 Pat., 818, Damodardas v. IJttamtam (1893)
17 Bom, 271; Jugmohandas v. Mangaldas (1886) 10 Bom., 528, 562;
Konerrav v. Gurrav (1881) 5 Bom., 589, 595; Narayan v. Nathaji
(1904) 28 Bom., 201.

27

Managing
member
represents
family in all
transactions.

386

THE JOINT FAMILY.

[chap, VIII,

In units.

Decrees
against him
binding.

their own names (p). In other woids, the managing member
has the right to represent the entire family in all transactions
1 elating to the family, whether they are in connection with
immovable propeities or otherwise (q). The managing
member lepresents the family in a suit on mortgage (r), as
well as in a suit for recovery of possession of immovable
property (s).

The family is bound by a decree properly passed against
the manager of a joint family either in respect of family
property or for a debt contracted or a mortgage executed by
him on behalf of the family (/) The right of the managei
to sue on contracts entered into with him does not cease by
the mere fact that there are dispute in the family or that

(p) Kishen Parshad v Har Narain Singh (1911) 38 I A., 45, 33
All., 272, Rarnnath v Hamrao (1922) 46 Bom., '358, Atmaram v
Rankii Mai (1930) 11 Lah., 598, Rani Kishen v. Ganga Rain (1931)
12 Lah, 428, Sheik Ibrahim v. Rama Aiyar (1912) 35 Mad, 685,
Bhola Roy v Jung Bahadur (1914) 19 C.LJ., 5, Gangaram v. Bapu
Saheb (1922) 46 Bom, 1022, Anantram v. (hannulal (1903) 25 All.,
378, Gopal Das v. Badnnath (1905) 27 All., 361, Lah hand v. Sheo
Gobind (1929) 8 Pat, 788, Lalji v. Kishorji (1913) 37 Bom., 340

iq) } enkatanarayana v Somarajii I1937J Mad., 880, F.B.; Adi-
narayana v Venkata A.I R 1937 Mad., 869, Ramanathan v.
S, Rrn M Ct, M, Firm [1937J Mad.. 376.

(r) Sheo Shankar v Jaddokunwar (1914) 41 I A, 216, 36 All.,
383, Honlal v M unman Kunwar (1912) 34 All, 549, F.B ; Madanlal
V. Kishen Singh (1912) 34 All, 572, Ram Krishna v. Vinayak (1910)
34 Bom., 354, Raghunandan v Parmeshwar (1917) 2 PLJ, 306;
Bungse v. Soodist Lai (1881) 7 Cal, 739, Arunachela v Vaithilinga
(1883) 6 Mad., 27, Ramayya v. V enkataratnam (1894) 17 Mad, 122,
Pirthi Pal V Rameshwar (1927) 2 Luck, 288, Madhusudhan v.
Bhagwan (1929) 53 Bom, 444 (The decisions to the contrary in
Alagappa v V e Ilian (1895) 18 Mad., 33, Angamuthu v Kolandavelu
(1900) 23 Mad, 190; Seshan Patter v. Veera Raghavan (1909) 32
Mad., 284, Balkrishna v. The Municipality of Mahad (1886) 10 Bom,
32, and Shamrathi v. Kishan Prasad (1907) 29 All., 311 are no longer
law.)

(s) Lingangowda v. Basangauda (1927) 54 I.A., 122, 51 Bom, 450,

Muhammad Sadik v. Khedan Lall (1916) 1 P.L.J , 154, Tribeni

Prasad v. Ramasray Prasad (1931) 10 Pat, 670 F.B., Rachottappa
V. Konher Anna Rao (1935) 59 Bom., 194, 216

{t) (1927) 54 LA, 122 supra, V enkatanarayana v Somarajii L1937]
Mad., 880 F.B. The judicial Committee, in the former, observed that in
such cases the court looks to explanation VI of Section 11 of the Code
of Civil Procedure to see “whether or not the leading member of the
family has been acting either on behalf of minors in their interest, or
if they are majors, with the assent of the majors.” This does not
mean that the assent should be express; it would be implied if they
acquiesce in the manager’s conduct of the suit or defence. If the
other members be not satisfied with the prosecution of the suit or
defence, they could apply to be made parties and ordinarily the
Court would make them parties; Mallikarjuna v. V enkataratnam (1938)
1 M.LJ.. 526, 47 M.L.W.. 511.

PARAS. 301-302.] SUITS BY COPARCENERS.

387

the other members affect to revoke his authority to act on
their behalf (a).

Where the suit relates to joint family property and the
person sued or suing is the manager, he need not be described
as such in the plaint, though it is advisable to do so. If it
appears that in fact he was the manager and the suit related
to the joint family property or its rights or liabilities, it
must be presumed that he was suing or being sued in his
representative capacity; and even the omission to state in the
decree that it was passed in his favour or against him in such
capacity does not prevent the decree from being for or against
the entire family (v) .

§ 302. It follows, as a result of the necessity for either
joint action or action by the accredited representative of the
family, that a single coparcener who is not the managing
member canno^t sue or be sued on behalf of the family. For
instance, a single member cannot sue, or proceed by way of
execution, (w) to recover a particular portion of the family
property for himself, whether his claim is preferred against
a stranger who is asserted to be wrongfully in possession, or
against his coparceners. If the suit is against a stranger, the
managing member or all the members must join, and the suit
must be brought to recover the whole property for the benefit
of all. And this, whether the stranger is in possession without
a shadow of title, or by the act of one of the sharers, in
excess of his power (x), or by the lawful act of the manager.
If any of the members refuse to join as plaintiffs, or are
colluding with the defendants, they should be made co-
defendants, so that the interests of all may be bound (y).

(u) Adaikalam Chetty v. Subban (1914) 27 M.L.J., 621.

iv) Madhgouda v. Halappa Balappa (1934) 58 Bom., 348;

Surendranath v. Sambhunath (1928) 55 Cal., 210; Dharup Raj v.
Ram Audhesh A.I.R., 1935, All., 452; Tulshi v. Bishnath Rai A.T.R.,
1923, All., 284; Mukhram Mahto v. Kesho Ram A.I.R., 1935, Pat.,
2.58, Chandi Prasad y. Balan Misir (1931) 53 All., 427; (1938) 1
M.LJ., 526 mprcL

iw) Bamrsi Das v. Maharani Kuar (1883) 5 All., 27; Gauri
Shankar v. Kunwar Jung (1926) 2 Luck., 259; A.I.R. 1926 Oudh, 605.

(x) Sheo Churn v. Chukraree (1871) 15 W.R., 436; Cheyt Naratn
V. Bunwaree (1875) 23 W.R., 395; Rajaram Tewan v. Luchman (1870)
4 B.L.R. (A.C.J.), 118, approved in Phoolbas Koonwar v. Lalla
Jogeshur (1876) 3 I.A., 7, 26, 1 Cal., 226; Biswanath v. Collector of
Mymensing (1871) 7 B.L.R., Appx., 42; affirmed by F.B. Unnoda v.
Erskine (1874) 12 B.L.R., 370; Teeluk y, Ramjus 5 N,-W,F,,IS2; Nathuni
V. Manraj (1877) 2 Cal., 149; Arunachela v. Vythialinga (1883) 6
Mad., 27; Sheik Ibrahim v. Rama Aiyar (1912) 35 Mad., 685; Kishan
Prasad v. Har Narain Singh (1911) 38 I.A., 45, 33 AIL, 272.

(y) Rajaram Tewan v. Lachman, ub sup; Juggodumba v. Haran
(1868) 10 W.R., 108; Gokool v. Etwaree (1873) 20 W.R., 138.

Suits by one
co-sharer.

tHE JOINT FAMIlV.

[chap. Vlll,

iSli

One or more members can, however, sue persons who infiinge
the rights of the family, joining the other coparceners as de-
fendants without stating either that they refused or were con-
sulted before the institution of the suit (z) . If the suit is against
Rights of ^he coparceners, it is vicious at its root. The only remedy

roparcencis by one member against his co-sharer for possession is by a

inter ac. £qj, partition, as until then he has no right to the ex( lusive

possession of any part of the property (a ) . Suits foi
injunction in cases of family property, as between members
of the family are confined to acts of waste, illegitimate use
of the family property, and ouster (h) The same lule
forbids one of several sharers, not being the nianagei, to
sue alone foi the ejectment of a tenant (c), unless, pci haps,
111 a case wheie by airangement with his coparceners the
plaintiff has been placed in exclusive possession of the
whole (c/) , oi for enhancement of lent (e) oi foi his shaie
of the rent (/), unless where the defendants h§ve paid then
rent to him separately, oi agreed to do so, in which case

(z) Pyare Mohan Pose v kedarnath (1899) 26 Cal, 409 F B.
commenting on Dwarkanath Muter v Tara Prosanna (1889) 17 Cal,
160; Periakaruppan v. Velayudham (1906) 29 Mad., 302, Kunhan v.
Moorthy (1911) 34 Mad, 406, karattole Edamana v IJnni Kannan
(1903) 26 Mad., 649 (F.B.) overruling Savitri v. Raman (1901) 24
Mad., 290, and dibsentmg from Paraniesvaran v Shangaran (1891)
14 Mad, 489, Bin Singh v Natval Singh (1902) 24 All, 226; Karnini
Mohun V Nibaran Chundra AIR 1923 Cal, 506, Pramada Nath v.
Ramani kanta (1908) 35 1 A., 73, 35 Cal., 331.

(а) Phoolbas koonnur v Lalla Jogeshur (1876) 3 I.A , 7, 1 Cal.,
226, Tnmbak v Narayan (1874) 11 Bom H.C., 69, Gobind Chunder
V. Ram Coomar (1875) 24 WR, 393, Ramanuja v. Virappa (1883)
6 Mad, 90. bee, howevei, Naranbhai v Ranchod (1902) 26 Bom, 141.

(б) Anant Ramrav v Gopal Pahvant (1895) 19 Bom., 269, Ganpat
V. Annaji (1899) 23 Bom, 144, Sheo Pershad v Leela Singh 20 W.R.,
160, Soshi V. Ganesh (1902) 29 Cal, 500. As to the form of the decree
to be made where one of the co-'^harers has taken exclusive possession
for himself of part of the land, vee Jagernath v. Janath (1905) 27
All., 88, Ramcharan v Kanlisher, ibid, 153, Muhammad Abdul Jalih
khan v Muhammad Abdiis (1933) 55 All, 728, Hanuman Prasad v.
Mathura (1928) 51 All, 303 FB

(c) Sree Chand \ Aim (.hand (1870) 13 W R., 337, 5 B.L.R.,
Appx. 25, Alum v Ashad (1871) 16 W.R , 138, Hulodhur v Gooroo
(1873) 20 WR, 126, Krishnarav v. Govind (1875) 12 Bom. H C , 85;
Balaji V. Gopal (1879) 3 Bom, 23; Reasut v. Chorwar (1881) 7 Cal.,
170 See abo Gopal v. MacNaghten (1881) 7 Cal, 751, Gopal Ram
\. Dharkeshwar Pershad (1908) 35 Cal, 807.

{d) Atiiir Singh v. Moazzim 7 N.-W.P, 58

(e) Jogendro v Nobin Chunder (1882) 8 Cal., 353; Kalichundra
V. Rajkishore (1885) 11 Cal, 615; Balkrishna v. Morokrishna (1897)
21 Bom., 154, where the suit was brought by the manager in his own
name, with the consent of the co-sharers.

(/) Indromonee v Suroop (1871) 15 W R., 395, Hur Kishore v
Joogul (1871 ) 16 W R , 281, 12 BLR, 293 (note) , Bhyrub v. Gogaram
vl872) 17 W.R., 408; Annoda v. Kally Coomar (1879) 4 Cal., 89;
Manohar Das v. Manzir Ah (1883) 5 AIL, 40.

PARAS. 302-303.] RIGHT TO JOINT POSSESSION.

389

they at all events could not raise the objection (g). And
so where one member of a joint family has laid out money
upon any portion of the joint estate, his outlay is ordinarily
a matter to be taken into account on a partition {h). But
the right and duty of contribution is founded on doctrines of
equity; it does not depend on contract (i).

On the other hand, where the act of a third party with
respect to the joint property has caused any personal and
special loss to one of the co-sharers, which does not affect
the others, he can sue for it separately, and they need not
be joined (y). And it would seem that one co-sharer may
sue to eject a mere trespasser, when his object is to lemovre
an intruder fiom the joint property, without at the same
time claiming any special portion of it for himself (k) .
Where a mortgage was taken by a coparcener in his own
name out of funds belonging to the family but without
disclosing that* he was acting as an agent of the family, it
was held that he was entitled to sue on the mortgage without
joining the other members of the family. So too, m the
case of a contract (/).

I 303. As there is community of interest and unity of
possession between all the members of a coparcenary, each
coparcener is entitled to joint possession and enjoyment of
the common property. A coparcener who is excluded from
his joint enjoyment is not bound to break up the joint family
and sue for partition. He can enforce his right to joint
possession of any property from which he is excluded (m).
This of course can only refer to the very limited number

(g) Of course the co-sharers might agree that the tenant should
pay each of them a portion of the rent, and would then be entitled
to sue separately for their respective portions. Gum v Moran (1879)
4 Cal, 96 (F.B.); Pramodanath v. Rajani Kant (1904) 9 C.W.N., 34;
Raja Simhadn Appa Rao v Prathipatti Ramayya (1906 ) 29 Mad., 29;
Lootful hack V. Gopee (1880) 5 Cal., 941.

(h) Muttuswami v. Suhbiramaniya (1863) 1 Mad. H.C., 309.

(i) Kazini Ah v. Sadiq Ah A.I R. 1938 P.C., 169, 42 C.W.N., 901.

(/) Gopee V. Ryland (1868) 9 W.R., 279, Chundee v. MarNaghten

(1875) 23 W.R.. 386.

(A) Radho Proshad v. Esuf (1881) 7 Cal, 414; Harendra v
Moran (1888) 15 Cal., 440; Currimbhoy v. Greet (1930) 57 Cal., 170.

(/) Adaikalam Chetti v. Subban Chetti (1914) 27 M.L.J., 621;
Adaikkalam Chetti v. Marimuthu (1899) 22 Mad., 326; Gopal Das t
Badrinath (1904) 27 All., 361; Bungsee v. Soodist Lall (1881) 7
Cal., 739.

ini) Ramchandra v. Damodhar (1896) 20 Bom., 467; Naranbhai
V. Ranchod (1902) 26 Bom, 141; Soshi v. Ganesh (1902) 29 Cal, 500;
Anant v. Gopal 0895) 19 Bom, 269: Ganpat v. Annaji (1899) 23
Bom., 144; Chakrapani Misro v. Sadasiva (1913) 25 M.LJ., 352;
Romesh Chundra v- Soojo Coomar (1866) 5 W.R.C.R., 90.

Against a
mere

trespasser.

Rights of
coparceners
to joint

possession and
enjoyment.

390

THE JOINT FAMILY

[chap. VHI,

of subjects which are capable of being jointly possessed
by several persons. It cannot affect the right of

the manager to allot to the several members, the use

of such portions of the property as are necessary for
their personal enjoyment (n). Still less can it be held to
entitle any member to take possession at his own discretion
of any portion of the joint funds or joint income. In Bengal,
where the members hold rather as tenants in common than
as joint tenants, a greater degree of independence is possessed
by each (o). There, each member is entitled to a full and
complete enjoyment of his undivided share, in any proper
and reasonable manner, which is not inconsistent with a

similar enjoyment by the other members, and which does
not infringe upon their right to an equal disposal and

management of the property (p). And one coparcener may
also lease out his share (^) The Allahabad High Court has
held that he cannot, without permission, do anything which
alters the nature of the propeity; as, for instance, build upon
it (r). This has been dissented from by the Calcutta High
Court (5). A distinction is drawn between a case wheie the
other co-sharers seek to prevent a man from erecting a
building and a case where they sue after the erection of the
building. Where lands are held in common between the parties
and one of them is cultivating a part which is not being
actually used by the other, it would not be consistent with
rules of justice, equity and good conscience to lestrain the
foimer from his pioper cultivation of it (5). This however
applies only where the joint property has been used in a
way quite consistent with the continuance of the joint owner-
ship and possession and there is neither exclusion nor denial

(n) Raghunadha v. Brozo Kishore (1876) 3 I.A , 154, 191, 1
Mad , 69.

(o) See per Phear, J, Chuchun v Poran (1868) 9 WR, 483.

(p) Eshan Chunder v. Nund Coomar (1867) 8 W.R , 239, Gopee

Kishen v Hemchnnder 13 WR, 322, Niindiin v Lloyd 22 W R , 74,

Stalkartt v Gopal 12 BLR, 197, 20 W R , 168, Watson v Ram Chand
Dutt (1891) 17 lA, 110, 120. 18 Cal, 10, 21 This is now subject
fo the excephrin as regards dwelling house under s 44 of ihe Transfer
of Property Act Kshirode v Saroda (1910) 12 CLJ, 525; Gtrijn
Kanta v. Mohim Chandra (1915) 20 CWN, 675.

(<7) Ramdebul v Mitterjeet 17 W R 420

(r) Paras Ram v Sherjit (1887) 9 All, 661, Shadi v Anup Singh
(1890) 12 All, 436 FB. Najjukhan v Imtiazuddin (1896) 18 All,
115, Mohanchand v. Isakbhai (1901) 25 Bom., 248

(s) Joy Chunder v Bippro Churn (1887) 14 Cal, 236, Shamnugger

V Ram Narain (1887) 14 Cal, 189, Lachmeswar v Manowar Hassein

(1891) 19 I. A., 48, 19 Cal, 253; Watson v. Ramchund Dutt (1891)
17 I.A., 110, 18 Cal, 10, Fazilatiinnissa v. Ijaz Hassan (1903) 30 Cal,,
901; Akshay Kumar v. Bhajagobinda (1930) 57 Cal., 92.

PARAS. 303-304.]

TRADING FAMILIES.

391

of the other’s title (/) . Where there is ouster or denial of
title, the other sharers will be entitled to recover joint

possession (m).

There is nothing to prevent one co-sharer being the

tenant of all the others, and paying rent to them as such.

But the mere fact that one member of the family holds

exclusive occupation of any part of the property, carries
with it no undertaking to pay rent, in the absence of some
agreement to that effect, either express or implied (v).

§ 304. Fifthly, a very important species of joint property
among the commercial classes is that of hereditary trading
‘partnerships’ or firms. These sometimes consist exclusively
of members of the joint family. Sometimes they are composed
in part of persons of another family. Where one or more joint
members trade, by themselves or in partnership with
strangers, on capital which is not family property, the pro-
fits resulting are, of course, exclusively their own (m;). When
the trade is carried on by members of the joint family alone
and no strangers are associated with them, its incidents are
legulated by Hindu law and not by the law of partnership
as embodied in the Indian Partnership Act (IX of 1932) for
the relationship of partners arises from contract and not by
status ix). The difference between a Hindu undivided family
carrying on business and a partnership has received a greater
emphasis by the Partnership Act which requires registration
of firms for full rights of action (y) . Under Section 5 of the
Act, the members of a Hindu undivided family carrying on a
family business as such, are declared not to be partners in

it) Manimohan Pal v, Gourchandra (1933) 60 Cal, 1212.

(u) Surendra Narain Sinha v. Hanmohan (1906 ) 33 Cal., 1201;
Nabadivip Chandra v. Bhagaban Chundra (1926) 31 C.W.N., 4%;
Basanta Kumari v. Mohesh Chunder (1913) 18 C.W.N,, 328.

iv) Alladinee v. Sreenath (1873) 20 W.R., 258; Gobind Chunder
V. Ram Coomar (1875) 24 W.R , 393.

(w) Vadilal V. Shah Kushal (1903) 27 Bom., 157, 161: “Just as
there is no presumption that a loan contracted by a manager of a
Hindu family is for a family purpose [as held in Soiru Padmanabh v.
Narayanrao (1893) 18 Bom., 250], so there can be no presumption
that a business carried on by a coparcener is a family business*’;
Gokalchand v. Hukumchand (1921) 48 I.A., 162, 171, 2 Lah., 40, 49;
Mirzamal v. Rameshar (1929) 51 All., 827; Mulchand Hemraj v.
Jairamdas A.I.R. 1935 Bom., 287, Anant Ram v. Channulal (1%3)
25 All, 378, 381, Faqirchand v. Salig Ram A.I.R. 1931 Lah., 429;
Chandulal v. Molumal A.I.R. 1933 Lah., 68; Udaychand v. Thansingh
(1935) 62 Cal. 586.

(x) Ramlal v. Lakshmi Chand (1861) 1 Bom. H.C., App., li;
Lalji V. Keshowji (1913) 37 Bom., 340.

(y) The Indian Partnership Act, S. 69,

Coparcener
may be
tenant.

Trading

families.

Not

partnerships

392

THE JOINT FAMILY.

[chap. VIII,

such business. It would seem therefore no longer correct to
say that a joint family business has many of the incidents of
a partnership (z). The death of a coparcener or even of the
managing member does not dissolve the joint family firm
and the property passes by survivorship like any other joint
family property (a). As the capital is obtained from the
family property, the trade and its assets are also family
property. Such a business is descendible and heritable like
any other species of joint family property The interest of
a minor member in a joint Hindu family business, either
existing at the date of his bath or founded during his
minority, is acquired by virtue of his belongine; to the family
and does not depend on any agieement on his part or on
his admission by the olhei members of the familv
to the benefits of partnership (b) Again, unlike a
partner, a coparcener severing his connection from the busi-
ness cannot ask foi an acTount of past piofilsfc). The
rights and liabilities inter se of the copaiceneis in respect
of the trade or business are governed by Hindu law. In the
case of a family trade or business, as in lespect of othei
family piopeities, it is only the managing member that can
ordinarily act on behalf of the family and bind by his arts
his coparceners id). But it is not unusual that foi the
convenience of the trade or business there is not one manager
but by arrangement amongst the members, several with equal
powers aie associated in its (onducT In such a case, the
act of anvone will bind all the coparceners

Tt has been held in some cases that the members of a
trading family, though not partneis inter se, stand in the

(z) The Offuial Assignee v Neelamhal (1933) 65 M L J., 798, 803
The joint family busmens must be that of a whole familv or the
whole of a bianch of a family Where all the members of a joint
family or of a branch are adulis, a partnership can be created with
Its incidents governed by the Partnership Act but in that case it
can no longer be regarded as an undivided family but as one become
divided in interest

(a) Sawalbhoi v Someshwar (1881) 5 Bom, 38, In the matter oj
Haroon Mahomed (1890) 14 Bom , 189, 194, RaghiimiiU v Luchmon-
das (1916) 20 (] W N , 708, Lata Baifnath v. Ram Gopal 119381
1 Cal, 369 (The dictum that an undivided family is a partnership is
incorrect)

(/)) Official Assignee v Palaniappa Chetty (1918) 41 Mad, 824,
830 F.B.

(c) (1881) 5 Bom 38 supra, Ganpat v Annan (1899) 23 Bom ,
144; Ramaswami Chetti v Srinivasa Aiyar (1936) 70 M.LJ, 214, 216

(d) Ramaswami Chetti v Srinwasa Aivar (1936) 70 M LJ . 214,
216; Ramaknshna v. Manikka A.I.R , 1937, Mad., 375, (1937) 1 M.LJ.,
587.

PARAS. 304-305.] TRADING FAMILIES.

393

relation of partners as regards persons dealing with them (e) .
This formula, if it refers to more than the personal liability
for the debts of the firm, would seem opposed both to Hindu
law governing a joint family and to Section 5 of the
Indian Partnership Act. Neither Section 251 of the
Contract Act nor Section 20 of the Indian Partnership Act
will apply. Where several persons take an active part in
the conduct of the business, they may well be regarded as
managing members or as persons entrusted with the conduct
of the business and they can not only bind each other but
also other members of the family including minor co-
parceners. Where a junior member of a joint Hindu family
is in charge of the business, he will have all the powers of
a managing member to the extent necessary for the proper
conduct of the business of which he is in charge (/) .
Accordingly the personal liability, for the debts due by the
trading family, of such of the coparceners including the
managing member as take an active part in the conduct of
the business is well established (g).

§ 305. Wheie a member of an undivided family holds
himself out as a partner, no doubt he will be liable on that
footing to third parties. But he cannot give himself an
authority to bind the other members of the family. The true
legal position therefore is that, as between the coparceners,
the fact that the family is engaged in trade does not convert it
in relation to that trade into a partnership (/i) . Though
the interest of the family in the trade passes by survivorship
and though every member of the family acquires by birth an
interest in the profits and assets of the trade, he does not
thereby become a partner in the business. A minor member,
therefore, will not on attaining majority be entitled to demand

(e) Chulam Mohammad v Sohna Mai A.I.R., 1927, Lah , 385,
Dehidayal v. Baldeo Prasad (1928) 50 All, 982; Somasundaram
Chettiar v Kanoochetti A.I.R., 1929, Mad., 573; Benares Bank, Ltd, v.
Krishna Das A.IR.. 1932, Pat, 206, Krishna Aiyer v. Pierce Leslie,
Ltd. A.I.R., 1936, Mad., 64; Sirikant Lai v. Sidheswar Prasad (1937)
16 Pat., 441.

(/) A.I.R., 1937, Mad., 375, (1937) 1 M L.J., .587, 594 supra; but see
(1936) 70 M.L.J , 214 supra; Krishna v. Knshnaswami (1900) 23
Mad., 597, 600; Sheo Pershad Singh v. Saheb Lai (1893) 20 Cal., 453,
461.

(g) The Official Assignee v. Palaniappa Chetty (1918) 41 Mad.,
824 F.B.; (1936) 70 M.L.J., 214 supra; Nachiappa Chetty v. Raman
Chetty A.T.R., 1935, Rang., 227; Punjab National Bank v. Jagdish
A.I.R.. 1936 Lah., 390; Shivcharan Das v. Hari Ram (1936) 17 Lah.,
395; Sheo Ram v. Luta Ram A.I.R., 1937, Lah., 6. See the cases
cited in note (/) supra.

ih) (1936) 70 M.LJ., 214, 216 supra.

394

THE JOINT FAMILY.

[chap. VIH,

Power to
carry on
ancestral
business

to be associated in the management of the family business and
can only be so associated with the consent of the members
already in management fi). The fact that a minor helps in
the conduct of the business does not constitute admission to
the benefits of the partnership within the meaning of the
Act (y). The liability of the members of the family who take
an active part in the management of the business to account to
the other members of the family is regulated by the same
principles as are applicable to the management of any other
portion of family property (A). A creditor dealing with the
manager of a joint family does so with the knowledge of the
limitations of his powers and is not entitled to any notice of
any division between the members of the family for in
dealing with a member of a Hindu family he does so at his
peril (/) Where an undivided family severs in interest

and the family business continues to be cariied on either
by all of them oi such of them as have t^ken the business

ovei for their interest, the business or trade becomes an

ordinary paitnership, for an agreement to carry on the busi-
ness will be implied (m) But where the division is only
partial and no final adjustment is made, it may be that the
})usiness is hedd by them only as tenants ii. common in)

^ ‘>06 The power of a managing member whether he is
a fathei or other senioi coparcener to carry on a family
tiusiness IS ordinal ily confined to ancestral business. He
cannot stall a new^ Irade oi business so as to impose

upon minoi members the iisk of such a business nor can he
stall a new business so as to bind adult coparceners except
with their consent, expiess or implied This limitation upon

(/) Liitchmaiianchetty v Siva Prakasa (1899) 26 Cal, 349;

Anantram v Channulal (1903) 25 All, 378, Lalji Nensey v Keshowji
(1911) 37 Rom, 340

(/) (1918) 41 Mad., 821 FB supra, cf Indian Partnership Art,
S 30

ik) Damodardas v Vttam Ram (1893) 17 Bom, 271, Ganpat v.
Annaji (1899) 23 Bom, 144 In the latter case, it was held, relying
upon the law of partnership, that Hindu law does not prevent an
injunction being granted if one member of the family is prevented
from taking part in the business of the firm, but evidently it
was regarded as a case of ouster Ordinarily the managing
member alone can manage it in the absence of any arrangement,
express or implied. See also (1936) 70 M L J., 214 supra

(/) Ramaswami Chetti v Srinivasa Aiyar (1936) 70 M.L J , 214.

(/n) Jatti V. Banwari Lai (1923) 50 T A , 192, 4 Lah., 350, 353;
Babu V. Official Assignee of Madras (1934) 61 I A , 257, 57 Mad, 931;
jMla Baijnath v Ram Gcpal [19381 1 Cal., 369.

in) (1936) 70 M L.J , 214 suura, Gundayya Siddappa A,T R.,
1937, Mad.. 599,

PARAS. 306-307.] TRADING MANAGER’S POWER.

395

the powers of a manager applies whether the family is
governed by the Dayabhaga or Mitakshara law (o). In
Sanyasi Charan v. Krishnadhan (p), a minor and his four
adult brothers formed a Dayabhaga joint family which was
carrying on an ancestral business. The adult brothers started
and carried on a new business. The Privy Council held that business,
the karta of a joint family cannot impose upon a minor
member the risk and liability of a new business started by
himself and the other adult members. In Benares Bank,

Ltd. V. Harinarain, the principle of the above decision was
extended to a Mitakshara family and it was further held
that the fact that the managing member was the father of the
minor coparceners made no difference (q). Whether this
limitation on the poweis of a manager applies to the manager
of a trading family or a family whose kulachara or hereditary
avocation is trade is not free from doubt (r).

§ 307. It is however not unreasonable to distinguish Hereditarily
between a family whose hereditary avocation or kulachara trading
is trade or commerce and a non-trading family. In the latter

(o) Sanyasi Charan v Krishnadhan (1922) 49 LA., 108, 49 Cal.,
560, Benares Bank, Ltd v Harinarain (1932) 59 I.A., 300, 54 All.,
564; Inspector Singh v. Kharak Singh (1928) 50 All, 776; Bishwanath
V. Kayastha Trading (corporation (1929) 8 Pat., 450, Vithal v. Shivappa
(1923) 47 Bum., 637, Tammireddi v Gangireddi (1922 ) 45 Mad., 281,
reversed on another point in Gangi Reddi v Tammi Reddi (1927) 54
T.A , 136, 50 Mad., 421; Ramnath v. Chiranjilal (1935) 57 All., 605
F.B., Mahabir v. Amla Prasad (1924) 46 All, 364; Nataraja v
Lakshmana A.I.R., 1937, Mad., 195; Subbaratna v Gunavanthalal
(1937) 1 MLJ., 22-1, Miilchand Hemraj v. Jairamdas A.I.R., 1935,
Bom, 287; Sabhachand v. Sambhoo A.I.R., 1937, Bom., 182; Nawal)
V. Sardarsingh A.I.R, 1935 Lah., 176; Gurmukh v. Shiv Ram AIR.,
1935, Lah , 482, 17 Lah., 53 ; Nachiappan v. R. M. P. Chettyar Firm
(1936) 14 Rang., 313; Ganesh Prasad \.Sheogobind Saha (1937) 16 Pal.,
719; Sambaya Setty Rudrappa (1937) 14 Mys.L.J., 491, 42 Mys.H.C.R.,
163. The decision in Venkatasami v. Palaniappa (1929) 52 Mad., 227,
232, rests on the distinction between a trading and a non-trading
family but the dict^ m Achutramayya v. Ratnajee (1926) 49 Mad,
211 and in Annabhat v. Shivappa (1928) 52 Bom., 376, to the effect
that a new business started by the father is ancestral are no longer law,
though the actual decisions in the last two cases may be justified by
the pious obligation of the son.

(p) (1922) 49 TA., 108, 49 Cal., 560 Though the family appears
to have carried on an ancestral business, it is not stated to have been
a trading family.

(^) (1932) 59 I.A., 300, 54 All., 564. In this caee, it was not
a trading family; Ganpat Rai v. Suhhdeo Ram A.I.R. 1938 Pat., 335
serf qu (though the new business was started before the minors were
born).

(r) Ramnath v. Chiranji Lall (1935) 57 All., 605 FB., Achuta-
ramayya v. Ratnaji (1926) 49 Mad., 211; Venkataswami v. Palaniappa
(1929) 52 Mad., 227, Raghunathji v The Bank of Bombay (1909)
34 Bom., 72, Sanka Krishnamurthi v, Bqnk of Burma (1911) 35
Mad., 692,

396

THE JOINT FAMILY.

[chap. VIII,

case, of course, the starting of a new business cannot be
within the powers either of a father or other managing
member. In the former case, the usage of the family must
be held to modify the ordinary rules relating to the joint
family so as to empower the managing member to start a
new business either in place of the old or in addition to it.
Hindu law does certainly recognise the usages of a trading
family (5). And the distinction in the case of such families
between an ancestral and a new business appears, so far as
the risk and liability aie concerned, to be more formal than
substantial. An inherited business may involve quite as
much risk as a new business and apparently theie is no duty
on the part of a manager to close down an ancestral business
notwithstanding its evident risk. The element of risk, incident
in varying degree to all kinds of tiade 01 business is neces-
sarily assumed by trading families But a speculative busi-
ness or one attended with unusual risk will be beyond the
poweis of a managing member to stait 01 continue. There
IS however nothing to pi event an oidinary non-trading Hindu
family consisting only of adults fiom staiting a business with
their joint family funds which becomes on their death an
ancestral business. Distinguishing the Benares Bank*s
case (5^), a Full Bench of the Allahabad High Court in
Ram Nath v Chiranjilal, considered that a business may be
joint family business of the father and sons and that such
a transaction may be justified on the ground of legal necessity
or benefit (/) In Nataraja v Lakshrnan, it was held that
when the ancestral character of the business was put aside
and the transaction was sought to be justified on the ground
of necessity, no difference could turn on the fact that the
debts were incurred by the father and not by any other
manager and that proof must amount to proof of necessity
in the sense oidinarily known to Hindu law, and that the
starting of a rice mill by a father with a view to giving his
sons more income was not a legal necessity (a) . Again
where the nature of the property owned or acquired by the
family is such that it is usual to work it as a business as in
the case of quariies, mines, forests, plantations, salt-pans,
and boats, the manager would have the right so to work it
though it may not, in every case, be an ancestral business.

(s) Manu, VIII, 41, Yajn , I, 360-361; Raghunathji \. The Bank
of Bombay (1911) 34 Bom., 72, 77, per Chandavarkar, J.

(si) (1932) 59 LA, 300, 54 All, 564 supra.

(t) (1935) 57 All., 605 F.B ; Ambalal v. Bihar Hosiery Mills Ltd.
(1937) 16 Pat. 545.

(a) AJJl., 1937, Mad,, 195.

l>AliA. 307. j tHAblNc manager’s power. 397

Another important question is whether a particular busi-
ness is a continuation or an admissible extension or change
of the ancestral business or an altogether new business.

Whether it is the one or the other can only be an inference
of fact from all the circumstances of each case. Once an
exception is made to the strict law of the joint family by Extension of
admitting the usual risk of a joint family business, it would business,
seem that any hona fide extension or reconstruction of the
business cannot make it a new business; and this would be so
whether the business was exclusively a joint family business
01 whether it was carried on in partnership with a sliangei (t;).

In Ramkrishna v. Ratanchand, where an ancestral business
was carried on in partnership with a stranger and, on the
latter’s retirement, the partnership was dissolved but the
business was continued without the old partner for the benefit
of the joint family, though under a new name and with new
books, the Privy •Council held that the fact that speculative
transactions were entered into later on, did not convert the
joint family business into a new business (tv).

The view taken of the luling in Benates Bank Ltd,

V, Han Narain by the Allahabad and the Patna High Couils
appeals to be the reasonable and correct interpretation (m;').

The proposition laid down by the Privy Council as to a
new business cannot be taken to be a technical or invariable
rule admitting of no exceptions. The pious obligation of

iv) In Darnodaram v. Bansilal (1928) 51 Mad., 711, 718, 719, it
was laid down that where a family business consisted in the purchase
and sale of one commodity, the purchase and sale of another com-
modity was not outside the scope of that business. “The question to be
determined in each case should be whether having regard to the recognised
business, profession, means of livelihood or what is called the ‘kula-
chara’ of the family, the particular enterprise or embarking was only
within the reasonable limits of the exercise thereof or really having
regard to its nature or extent, a new speculative enterprise”. Raja-
gopala Iyer v. Ramanchettyar A I.R., 1927, Mad., 1190; Bhagtvansingh
V. Behari Lai A.I.R., 1937, Nag., 237, Subramanyamchetty v. Rama-
krishnammal (1924) 20 M.L.W., 627; Ramnath v. Chiranji Lai (1935)
57 All., 605 F.B.; Han Shanker \. Ram Sarup (1937) 39 P.L.R., 947.

(w) Ramkrishna v Ratanchand (1931) 58 I A., 173, 183, 184,
53 All., 190. But m Krishnaswami v. Rava Ramanadhan (1935) 68
M.L.J., 251, where a father started a business in partnership with
a stranger and after his death, his elder son continued it with the
stranger, it was held that as there was a dissolution of the partnership.
It could only be a new business. This is opposed to the above decision
of the Privy Council, where also there was a dissolution but the busi-
ness was continued without the stranger. .See Debt Prasad v. Tara
Prasanna A.I.R. 19.38 Pat., .377.

(it?^) Ram Nath v. Chiranjt Lai (1934) .57 All., 605 F.B.; (holey
Lai V. Dahp Narain (1938) 17 Pat., 386; Ambalal v. Bihar Hosiery
Mills Ltd, (1937) 16 Pat., 545.

398

Partnership

with

&ti angers

THE JOINT family. [cUAP. VIll,

the &on to pay the debts of a new business stalled by the
father would, in any ease, remain

§ 308. Where a stranger is associated with the members
of a joint Hindu family in a business whose capital in whole
or in part is derived from the property of the joint family,
the position is different. The stranger has allied himself
with certain definite persons and cannot without his consent
be forced to accept a change in the personnel composing the
partnership. Where a managing member of a joint family
enters into a partnership with a stranger, the other members
of the family do not ipso facto become partners in the
business so as to clothe them with all the rights and obliga-
tions of a partner as defined by the Indian Partnership Act.
In such a case, the family as a unit does not become a
partner, but only such of its members as in fact enter into a
contractual relation with the stranger; the .partnership will
be governed by the Act (ac;). Accordingly on the death of
one member of such a partnership, the whole partnership is
ipso facto dissolved, and the business will cease, unless re-
constituted by the mutual agreement of all those who propose
to carry it on (y). Existing contracts with outsiders can
only be carried out by means of a novation, which may be
either express or inferred from circumstances. In the
management of the business the other members of the family
have no part, they cannot, for example, sue for a dissolu-
tion. Then position cannot be higher than that of
subpartners though they will be entitled to call upon their
hianaging member or members who entered into the contract
of partnership to account for the profits earned by them

iw’^) Benarcb Bank Ltd v Han Narain fl9J2) 59 I.A , 300, 308,
51 All, 564, Brij iSurain v Mangla Prasad (1924) 51 I.A, 129, 46
All., 95; Subbaratnani v Gunavanthalal (1937) 1 M.L.J., 224

(x) This passage is cited with approval by the Privy Council in

Pichappa Chettiar v (Mockahngum Pillai (1934) 67 M.L J , 366

(PC), AIR, 1934, PC, 192, Gangayya v V enkataramiah (1918)
41 Mad. 454 FB.; Ramanathan Chetty v. Yegappa Chetty (1916) 30
M.L.J., 241; Thazath Soopi v. Abdulla (1924) 47 554, Kanhaya

Lai V. Devi Daycd A.I R., 1936, Lah., 514.

(y) Sokkanadha v. Sokkanadha (1905) 28 Mad., 344; Kharidar v.
Dayakishan (1921) 43 All, 116; Vadilal v. Shah Khushal (1903) 27
Bom., 157, Lakshman v. Bhik Chand A.I.R., 1930, Bom., 1; (1916)
30 M.L.J., 241 supra; Venkata Suryanarayana v. Ramayya (1921) 40
M.L.J., 153; Daiva Animal v. Selvaramanuja A.I.R., 1936, Mad., 479;
Sathappa Chetti v. Subramanian Chetty (1927) 53 M.L.J., 245 P.C.

PARAS. 308-308 A.] PARTNERSHIP WITH STRANGERS.

399

from the partnership and to share in such profits (z). In
Pichappa v. Chokalingam Pillai (a), where there was a
partnership between a trading family of Chetties and one
Virappa Pillai who was the managing member of a family
which was not a trading family and the business was a new
business, it was held that, in the absence of any clear evidence
as to the extent of benefit derived by the other members of
the family from his drawings, the Chetty partner was not
entitled to proceed against the family but only against
Virappa Pillai’s share. The ground of decision evidently
was that Virappa Pillai’s family w^as a non-trading family
and the business was a new one. Virappa alone could be
the partner and he could not bind the family by entering
into a partnership on its behalf. This does not affect the
decision in Gangayya v. V enkatramiah (6), where it was
held that when a managing member properly enters into a
partnership witlj a stranger, pledging the entire credit of the
family, the creditors of the firm can have recourse against
the entire assets of the tamily. But, as members of a joint
family, they have the same interest in the assets of the business
as they have in the other property of the family and the
same remedy against the managing member or members (z).

§ 308 A. The managing member of a trading family has
wider powers than those of the manager of a non-trading
family. There is no deviation from the fundamental principle
that what is done must be for the benefit oi necessities of the
family, but acts such as the incurring of debts and drawing
of negotiable instiuments are necessities to a trading family,
while they would not be to a non-trading family (c) . Credit

(z) Gangayya v. V enkatramiah (1918) 41 Mad., 454, 457 F.B.
(remedies of the coparceners discussed). The members of a family
whose manager becomes a partner with a stranger may properly be
regarded as beneficiaries, the managing member in such a case being
a trustee for them; in extreme cases, where the manager refuses to sue
the partnership, they may themselves sue in his name: cf. Dance v.
Goldinghani (1873) 8 Ch. App., 902, Chidanibaranatha v. Nallanva
(1918) 41 Mad., 124, 132. As to the rights of an assignee of a
partner, see 24 Hals., 2nd ed., p. 461.

(а) (1934) 67 M.L.J., 366, P.C, explained in Debi Pta^ad v.
Tara Prasanna A.I.R. 1938 Pat., 377. The decision in Knshnaswanu
V. Rava Ramanadhan (68 M L.J., 251) would appear to interpret
Pichappa Chetty's case differently but the judgments in that case and
m Ramknshna v. Ratanchand (1931) 58 I.A., 173, 53 AIL, 191, were
both delivered by Sir Lancelot Sanderson and there is no inconsistency
between the two.

(б) (1918) 41 Mad., 454, supra; Bhagwan Singh v. Bihari Lai
A.I.R. 1937 Nag.. 237.

(c) Niamat Rai v. Din Dayal (1927) 54 LA., 211, 8 Lah., 597, 600:
'Tt is within the powers of the managing member in a proper case to
sell immovable as well as the movable property for the purpose of
discharging such debts or enabling the business to be carried on.*’

Trading
family
manager's
wider powers.

400

tut: JOiNt tAMlLY.

[cllAP. Vlll,

Family or
trade assets

is the very essence of trade and the existence of business
creates the necessity for borrowing and purchasing on
credit (d). The power of a manager therefore to carry on the
family trade necessarily implies a power to pledge the
property and credit of the family for the ordinary purposes
of that trade (d’). And money borrowed for the purposes
of an ancestral business is per se a good justification for
alienation of family pioperty (d“) Even where the debts
are in fact inclined merely for the personal purposes of the
manager, they will bind the family if they are within the
ostensible authority of the manager as conducting the family
business So it is that those who deal with him and to
whom he incurs debts are not put upon enquiry as to whether
the debts were incurred for the benefit or necessities of the
family, so long as they are incidental to the family business;
for the karta of a Hindu joint family which carries on a
family business has implied authority to borrow money for
its purposes (e) .

But, with a strangei paitnei, the meinbeib of the family
who are not actively engaged m the business have no con-
li actual relation and they can ordinarily seek no diiect relief
against him.

To the creditors of the business they will be liable to the
extent of their share of the family property embarked in the
business. In the case of families whose hereditary occupa-
tion is trade, there is ordinarily no distinction between their

Ramkrishna v Ratanchand (1931) 58 T.A , 173, 53 All, 190, Morrison
V, Verschoyle (1901) 6 f ’ W N , 429, Kishcn Prasad v. Harinaram
(1911) 38 I.A., 45, 33 All, 272, Mt, Champa v. Official Receiver,
Karachi, (1934) 15 Lah , 9, Kesarsingh v Santokh (1936) 17 Lah.,
B24, Visvanadhan Chetty v Ramanadhan (1937) 2 MLJ., 559,
Mt. Bhishni v. Uttamchand A.I.R., 1935, Lah., 533. Ram Prasad v.
Bishambar Nath AIR, 1936, All., 607 , Ramakrishna v. Manikka
A.I.R., 1937, Mad., 375, As to the powers of a widow in carrying on
such a business, see bakrabhai v. Maganlal (1902) 26 Bom., 206,
Pahaltvansingh v. Jiwandas (1920) 42 All, 109, Barada Prasad v.
Krishna Chandra (1933) 38 C.W N , 33, A.I.R , 1934, Cal, 414,
Subrahmanya Chetty v Ramakrishnammal (1924) 20 M.LW.. 627.
South Indian Export Co v Subbier (1915) 28 M.LJ., 696, South
Indian Export Co. v. Visianadha (1914) 15 M.L.T., 323

id) (1924) 20 M.L.W., 627 supra, Raghunathji v. The Bank of
Bombay (1911) 34 Bom., 72.

(rfi) Sanka Krishnamurthi v. The Bank of Burma (1912) 35 Mad.,
692, 695.

{d^) Ramnath v. Chiranji Lai (1935) 57 All., 605, 613 F B.

(e) Abdul Majid Khan v. Saraswati Bai (1933) 61 I A, 90;
(1926) 54 I.A., 211; 8 Lah., 597, supra, Raghunathji v. Bank of
Bombay (1910) 34 Bom, 72, Sanka Krishnamurthi v The Bank of
Burma (1913) 35 Mad , 692; Visvanathan Chetty v. Rarnanathan
(1937) 2 M.L.J., 559, A.I.R., 1937, Mad., 816, Ram Gopal v. Baijnath
A.I.R., 1937, Cal., 396, on appeal 1 1938 J 1 Cal., 369.

PAIIAS. 308 A.309.J

TIUDE ASSETS.

401

family properties and their trade assets and the whole of
their joint family property will therefore be assets of the
business, in the absence of any special arrangement to the
contrary by which particular properties are validly set
apart (/). For, the business is conducted on the credit of
the whole family property, and that property is swelled by
the profits of the business and it would be impossible to say
that any particular portion of the family property, less than
the whole, is to be regarded as specifically allotted to the
business.

§ 309. An infant may partake in the benefits of a part* Infant
nership, but is not personally liable for the debts of such a
partnership incurred during his minority, even though he con-
tinues to take an active part in the conduct of the business
after attaining majority. So he cannot, for such debts, be
adjudicated an insolvent, though he can be in respect of part-
nership debts incurred after he attained majority and continued
to take an active part in the business (g). The shaie of an
infant, who is a member of a trading family, in such of the
property of a trading family as is invested in the business
carried on by it will be liable for the debts of the partnership,
and this, as already pointed out, will ordinarily mean his
share in the family property as a whole (h).

(f) Arunachalam Ghetto v Velhappa (1914) 27 M.L.J., 654 (Nattu-
kottai Chetties) , Chidambaram Chettyar v Ramaswami Chettyar
(1914) 27 M.LJ., 6il, Bank of Bengal v. Hamanadha (1915) M W N.,
180, Muttuya Pillai v. Tinnevelly South Indian Bank (1917) 5 M L.W.,
341, Malaiperumal v. Arunachala (1917) 6 M.L.W., 417; Thammanna
V. Akrapu (1920) 38 M.LJ., 55, Suhhoroya Pillai v Thangavelu
(1923) 45 M.L.J , 44; Ghabuain v Otla Gaurai A.I.R., 1936, Pat., 485;
Sheo Ham v Liita Ram A.I.R,, 1937, Lah., 6, Sirikant Lai v, Sidheswan
(1937) 16 Pat . 441.

{g) Sanyasi Charan Mandal v Asutosh Ghose (1915) 42 Cal., 225,
Sanyasi Charan Mandal v. hrishnadhran Banerji (1922) 49 I A.,
108, 49 Cal, 560 supra, (1918) 41 Mad., 824 supra, Jawala
Prasad v. Bhindara/n (1931) 10 Pat, 503 F.B.; Bhola Ptasad v
Ramkumar (1932) 11 Pat,, 399; l\/agasubramania v. Krishnamachan
(1927) 50 Mad., 981, Purnayya v Basava Kotayya (1931) 61 M.L.J.,
518, Ramalinga v Vellore Mercantile Bank (1929) 57 M.L.J,, 822.
As the manager of a joint Hindu family cannot by any act of his
impose a personal liability upon the other coparceners, the members
of a joint family can only be adjudicated insolvents if they are liable
on a joint debt and are guilty of a j'oint act or acts of insolvency.
Mahabir Prasad Poddar v. Ram Tahal (1937) 16 Pat , 724, following

B. Mamayya v. K, R, Rice Mill Co, (1921) 44 Mad., 810; Punniah v.
Kesarmal (1926) 50 Mad., 256 « Brojendra v. Nilkunja (1934) 39

C. W.N., 104.

(h) Bishambar v. Fateh Lai (1907 ) 29 AIL, 176 (separate property
not liable) following Chalamayya v. Varadayya (1898) 22 Mad., 167;
Bhambkar v. Sheo Naram (1907) 29 All., 166.

28

402

THli JOINT t'AMILY.

[chap. VIIl.

ManaRfr’s
aiitlionlv
in other
indtlert*.

KefiMoiH <• to
arbitration.

Powc i to
conipioinibi

§ ,]1() A inaiiajiiii" member has powei to lefei to
aibitialion aiiv dispute lelatmg to the family piopeity pro-
vided that such a couise is for the benefit of the family (0.
The other members of the family including minors are
bound by the reference and the award theieon if valid in
othei lespects (y). So also where the dispute is amongst
the members of the family themselves, a fathci can bind his
branch by leferiing the dispute to aibitiation (A;). Similarly
the father or other rnanagei of the family can bind the joint
famil\ b\ a ( ompromise made hona fide for the benefit of
the estate and not foi his peisonal advantage (/). So also
he (an bind minoi memlieis bv a familv settlement (/^j. In
Ganrsh Ron \ Tiilja Rani Ron, the Judicial CommilhM'
obs(‘rved “i\o doubt a father oi managing membei of a joint
Hindu famiK niav, under (^eitam c iic umstaiu (‘s and subjr( L
to (Cl lam ( ondilions. ('iitei into agieements which may be
binding on the minoi membei s ol the familv. Bui wheic a
minoi IS a paitv to a suit and a nevl friend or guaidian has
l)(‘en appointed to look aflei the lights and inteiests of the
infant m and (oiKeining the suit llu' ails ot such nevl fiiend
OI guardian aie subjtxl to the (onliol ol the (aun t'’ ( /// )
Accordingly where the fathei or the managing member is
the next friend oi guardian of the mirioi, the sanction of the

(z) Jdgannath v Manmdal (1894) 16 All. 2S1 , Curran Ditta v
Pokhar Ham (1927) 8 Lah , 693, I\anak( hand v Hanarsi Das (1931)

12 Lah, 6"), Raniji Ham v. balig Ham (1911) 14 C.LJ., 188, Shanti-

lal Mena Ham v Miinshilal Keivnl Ram (1932) 56 Bom, 595.

(;) Balaji I\arayan v Nana (1903) 27 Bom, 287, Dwarka Das \
Knshan hishore (1921) 2 Lah, 114, Chinna Pom hi Animal v Can^a
Naicker (1899) 9 M L J., 31, Natval Kishore v Sardar Singh \ I R,
1935, Lah, 667, Canpat Hai \ Bhagivat Dayal 1937 A \\ R , 803, 1937
ALJ, 1141

(A) Jagannath \ Manna Lai (1894) 16 All, 231

(/) Pitam Singh \ I jagar Singh (1879) 1 All, 651, Ham kiih^r

\ Ham Dasi (J91i) 35 \11 , 428, Tuhhi v Bishnath Hai AIR, 1923,

All 281, Duarka Das v Knshan Kishore (1921) 2 Lah, 111, Dangal
\ Jaunangal (1926) 5 Pat, 480, PathaL Singh \ Shcobachan AIR,
1931, Pal, 28 j, Kaluharan \ JIudai Narain AIR I9.>5, Pat, 21,
Sant Horn v Ilira Nand AIR., 1930, Lah, 719, Bhagwan Singh v
Behan J,al AIR, 1937 Nag, 237, sec Venkata Hoiv v Tulja Ram
Row (1922) 49 I A. 91, 98, 45 Mad, 298 (When the compiomise
on behalf of a father and his infant sons failed as a compro
mise binding the family, it would not be treated as a valid
alienation by the father quoad Ins interest) See Mohendra Nath
Biswas V. Shanisunnessa Khatiin ( 1915 ) 21 C L I , 157 and Hamsiiniran
Prasad v. Shyam Kuman (1922) 49 I A., 342, 348, 1 Pat., 741 (both
cases of compromise by widows).

(/I) Partab Singh v Sant Kucr (1938) 42 CWN, 817 PC.,
A.I R. 1938 P.C . 181

(m) Ganesha How v. Tulja Ham Row (1913) 40 I.A , 132, 36 Mad ,
295, 302-3, Venkata Row v. Tulja Ram Row (1921) 49 I.A., 91, 45 Mad..
298 .

1»AUAS. 3iO-3lO A.J SUNDRY POWERS OP MANAGER.

403

court under Order 32 Rule 7 of the Civil Procedure Code is
necessaiy for his entering into a compromise on behalf of
the minor.

The manager of a joint family has no right to waive or
give up a substantial portion of a debt due to the family,
meiely out of chanty to or sympathy with the debtors in).

He is entitled to settle accounts with the debtors and in the
couise of the settlement, he will have the right in the interests
of the family to make a bona fide remission or reasonable
1 eduction cither towards interest or piincipal, having legard
to the particnlai circumstances of the case (o). The powers
of a Mitakshara lather who is the karta of the family with
regard to the management of the family properties aic said
to be wider than those of otlier kartas (o^). But except m
the matter of debts and alienations for the dischaige of debts,
this goes too far.

§ 310 A. The managing member of a family has authoiity To agknow*
to acknowledge on behalf of the family a debt due by the
family as well as to pay inteiest on it oi to make pait pa\-
ment of the principal so as to enable a fiesh penod of limitation
to be ( omputed (p) Now. sub-section 3 (b) of Section 2J of
the Indian Limitation Act piovides* ‘‘wheie a liability has
been incuried by, or on behalf of, a Hindu undivided family
as such, an acknowledgment oi payment made by, or by the
duly authoiised agent of, the manager of the family for the
time being shall be deemed to have been made on behalf
of the' whole laniilv ” This would apply not only
to a liability cieated by a transaction to which all the
members of the family aie patties but also to a liability
arising under a tiansaction winch w^as entered into by the
managing member alone on behalf of the whole family (^i.

(n) Kofidiini Dasatathaiatua \. Indoor ]\atasa (1928) 51 Mad,
18 K bt'v dK<» I enfiafa Hoiv v Tulja Rani Row (1921) 49 LA., 91, 98,
15 Mad., 298. 306.

Vnikuntam Ptllai v. Avtidiappa Pillai, A l.R , 1937, Mad, 127.
(el) Surendranath v. Sambunath (1927) .55 Cal, 210, 218.

(p) Chinnaya Nayudu v. Gurunatharn Chetti (1882) 5 Mad., 169
F.B., Ambalavana v. Gown A I.R., 1936, Mad., 871, Bhaskar Tatya v.
Vijalal Nathu (1893) 17 Bom, 512, Sarada Charan v. Durgaram
(1910) 37 Cal, 461, Har Prosad Das v Harihar Prosad (1915) 19
C.W.N., 360, Han Mohun v Soiircndra Mohun A.I.R , 1925, Cal., 1153;
Ananda Charan v. Jhatee Charn A.I.R., 1935, Cal., 648; Ram Antar v.
Beni Singh A.I.R., 1922, Oudh, 135.

iq) Ambalavana v. Gown A 1 R., 1936, Mad , 871, 875. A part-
payment by the' manager after partition will not keep it alive.
Pangudaya v. i/thandeya (1938) 2 M.LJ., 33.

404

TIIL JOINT lAMlLV.

[chap. Vlll,

The] iiidna^ing incnibci. as biah, (diinot revive a lime-
bailed debt undei Section 25 (.3) of the Indian Contiact
Act {t). He has powei to give a valid dischaige foi a debt
due to the family and the meie fact that one of the membeis
of the faniilv is a minoi will not prevent time lunning
against all the membeis of the family ( 5 ) ; and a discharge
gnen by a membei othei than the manager is not a valid
discharge binding on the others I .

S 311 Where a managing member, without the consent
of the other coparceners and foi purposes not binding upon
them agrees to convey specific items of joint family property,
the vendee cannot obtain specific performance of the entire
contiact but only a conveyance of the share which his vendor
had at the date of the contract, if the puichasei elects to
pay the entire consideration (a).

Where a trading family consisting of majors and minors
purchased some lands from a customer for balance due from
him at some loss and agieed to sell them again to reduce the
loss in the business, it was held that specific performance
could be obtained against the minor members also on the
giound of benefit (v).

Where the contract is by the manager for the benefit of
the family and the manager dies, it can be enforced against
the survivois, whether majors or minors (w) .

(r) (1882) 5 Mad., 169 T.B. suprUy Uinkar v Appaji (1896) 20
Iloni , 155, Thdhar Das v Mt Dutli (1921J 5 Ldli . ji?. Jhabbu Ram
V Hahoran Singh AIR, 1926, All, 243, Giinni \ Dab hand (19.11)
53 All, 923 But a father can Narayanasami \ Samuhis (1883) 6
Mad., 293, Cajadhar v Jagannath (1924) 46 All, 775, 783 F B. bee
pobt § 328.

(s) Bapu Tai)a\ Rala Ravji (1920) 15 Born , 116, Snpdn Dailal
Singh V Sakharani Ramji (1928) 52 Born, 411, Rati Ram \ !Siadar
(1919) 11 All , 4.15, Havaith v Ram Rilas \ I R , 1921, All , 7 38

it) Ankalamma v Clicnchayya (1917) 41 Mad, 637, Umahant
Balknshna v. Martand Keshav A.l.R , 1933, Bom., 245, 35 Bom. L.R ,
388.

(u) Baluswami Aiyar v. Lakshmana Aiyar (1921) 44 Mad., 605
F.B.

(v) Narayanan Chetty v. Muthiah Chetty (1924) 47 Mad, 692.

In Dhapo v Ranuuhandra (1935) 57 All, 375, A dinar ay ana v

Venkata (1937) 2 M L.J , 653, and Tnbeni v. Jainarain AIR, 1937,
Pat., 425 contracts for s>alc were specifically enforced by or againbt
joint families, including minors.

(w) V enkateswara Aiyar v Raman Nambudn (1916) 3 M L W.,
435; Narayana Chetty v. Muthiah Chetty (1924) 47 Mad., 692.

CHAPTER IX.

LIABILITY FOR DEBTS.

§ 312. The Law of Debts illustrates a principle which
is constantly recurring in Hindu law, viz., that moral obliga-
tions take precedence of legal rights; or, to put the same
idea in different words, that legal rights are taken subject
to the discharge of moral obligations (a).

The liability of one person to pay debts contracted by another
arises from three different sources. These are: first, the religious
duty of discharging the debtor from the sin of his debts;
secondly, the moral duty of paying a debt contracted by one
whose assets have passed into the possession of another;
thirdly, the legal duty of paying a debt contracted by one
person as the agent, express or implied, of another, or as
having an authority conferred by Hindu law to act
on behalf of another. Cases may often occur in which more
than one of these grounds of liability are found co-existing;
but any one is sufficient.

§ 313. The first ground of liability only arises in the
case of a debtor and his own sons and grandsons. In the
view of Hindu lawyers, a debt is not merely an obligation
but a sin, the consequences of which follow the debtor into
the next world. Brihaspati says; “He who, having received
a sum lent or the like, does not repay it to the owner, will
be born hereafter in his creditor’s house, a slave, a servant,
a woman, or a quadruped” (6). And Narada says: “When
a devotee, or a man who maintained a sacrificial fire, dies
without having discharged his debt, the whole merit of his
devotions, or of his perpetual fire belongs to his creditors” (c) .
The duty of relieving the debtor from these evil consequences

(а) The recovery of debts is the first of the eighteen titles of law
Dr. Jolly refers to the high antiquity of the law of deht«. L & C
212. A striking illustration of the paramount obligation implied by
the word Rina or debt i-* seen in the theory of the three-fold debt, /.e.,
the study of the Vedas, begetting a son and performance of sacrifices.
Manu, XI, 66 (see also VI, 36, 37, IX, 106) ; Vas , XI, 47, 48; Vishnu,
XV, 45. And also in the Achnnta modes of realising adopted by the
eiedilor. L & C, 244, 318 See Chatar Sen v. Raja Ram (19381 All.,
58, 61.

(б) Dig., I, 228. The text is not found in Brihaspati S.B.E., Vol.
XXXIII. Nilakantha attributes the text to Katyayana in Vyav.
Mayiikha, V, iv, 11. See Narada, I, 7-8; Vyasa cit., V. May., V, iv, 11.

(c) Narada, I, 9 (S.B.E., Vol. XXXIII, page 44),

Three sources
liability.

Debts of

father

Liability of ton
independent
of assets.

406

SONS PIOUS ORTJGATION.

fCTIAP. IX,

falls on his male descendants, to the second generation, and
was originally quite independent of the receipt of assets.
Narada says: ‘The grandsons shall pay the debt of their
grandfather, which having been legitimately inherited by the
sons has not been paid bv them, the obligation ceases with
the fourth descendant” (^/) “Fathers wish to have sons on
their own account, thinking in then minds, ‘Ho will release
me from all obligations towards supeiior and inferioi beings.’
Three deceased ancestors must be worshipped, three must be
reverenced before the rest These three ancestors of a man
niav ( laim the discharge of their twofold debt from the fourth
in descent” (c) Biihaspali states a further dislini lion as lo
the degrees of liability which attach to the descendants “The
father’s debt must be fust paid, and next a debt contracted
by the man himself, but the debt of the paternal grandfather
must even be paid before either of these The sons must
])av the debt of then lathei, when })ioved, as, if it were their
own, or with interest, tin* son's son must pay the debt of his
grandfather, but without interest; and his son shall not be
compelled to dischai go it”, to which the gloss is added
“unless he be heir and have assets’' ( /) Finally Yajnavalkya
savs, “He who has received the estate or the wife of the
deceased should he made lo pay his debts or failing either,
the son who has not received an inheritance In the case
of a soilless deceased, those who take the heritage must be

(d) Nar , I, 4 This m counted inclusive of the debtor, Dig, I, 208
(Verse txcix) Tlijs iians?Idlion h> Mi ( olehrooke i'5 iii accordance willi
the coinmenlaiy of Asaliaya on Narada and the expre^ss text of Narada
1, 6 l)i lolly would liowtvei lead llo' Iasi daiist m Nai , I, '1.
thus “the liability for it does not include the fourth m descent ’’
:^BE, Vol XXXlll, page 42, Yajn , 11, 90

(e) Nar, I, 5 6 Asahaya, in his commentary on the Narada
Smiili, cites as a precedent for the lialiihly of the fourth in descent
to pay the debt of his great grandfather the history of an action.
Sndhara v Mahidhara, which was brought before the Court in Patna
(Patahputra) Mahidhara was the great-grandson of Devadhaia, the
original debtor The defence whioli was on the advice of Smarta
Durdhara that the obligation to pav doess not extend to the great-
grandson was negatived (Chose, HL, Vol II, 36-37, SBE, Vol
XXXIII, p 43) Dr Jolly considers that the commentator Asahaya's
view is opposed to that of V ijnauesvaru who considers that,
while the great-grandson would not be liable to pay the debt if he had
not received assets, he would he liable if he had assets (Mit on
Yajn , 11, 50, Selhir s ed , t()8) But ^sahaya‘’s romnient ieft‘is to
assets in the hands of Mahidhara

(/) Bnh , XI, 48, 49, Dig I, 181, Katvavana Dig, 1 207, Vvav
Mavukha, V, iv, 17, where the great grindson, the wife, the daiiglitei
end the heirs who take the estate aie placed on the s^nie footing.

PARAS. 313 - 315.1

EXCEPTIONS.

407

made to pay” (g). Therefore the Hindu lawyers recognise
a difference in the obligations resting upon sons, grandsons
and great-grandsons. The son was bound to discharge the
ancestral debt as his own, principal and interest, whether he
received any assets or not from the ancestor. The grandson
had to discharge the debt without interest and the great-
grandson s liability arose only if he received any assets from
the ancestor (A) .

? ‘lid The liability to pay the father’s debt arises from
the moral and religious obligation to rescue him from the
penalties arising from the non-payment of his debts And
this obligation equally ( ompels the son to carry out what
the ancestor has promised for religious purposes (i). It
follows, then, that when the debt creates no such religious
obligation, the son is not bound to repay it, whether he
possesses assets or not; and there can certainly be no religious
obligation whtfie the debt is of an illegal or immoral
tharacter.

^ 315. The general rule is that the son is liable to pay
the debts of the father except when they are of such a charac-
ter as to fall within one or other of the exceptions recognised
by the ancient Smritis (y). Such exceptions may be classified
ns follows: —

(1) debts due for spirituous liquors;

(2j debts due for lustful pleasures;

(3) debts due foi losses at play;

( 1 ) unpaid fines ,

(5) unpaid tolls.

ig) Yajn, II, 51, V May., V, 4, §16, Katyayana, Dig, I, 193. It
has been held that this principle of Hindu law does not apply to the
Narnhiidii Hiahriidiis «)f Maldhar NiIaLaridan v Madhavun (1887)
10 Mad, 9, Govinda v Krishnan (1892) 15 Mad, 333, Kunhu Kutti
Arnmah v Mallapratii (1915) 38 Mad., 527, Paramal v. Narayanan
A.I.R., 1932, Mad., 701, 35 MLW, 452; Narayana Ayyar v. Moorthi
Kendan (1938) 1 MLJ, 467. See as to their usages Vishnu v
Krishna (1884) 7 Mad, 15 F.B., Vasudevan v. Secretary of State
(1888) 1] Mad., 157

ih) Masitullah v. Damodar (1926) 53 I.A., 204, 211, 212, 48
All. 518, 526

(/) Katyayana, Dig, 1, 206

(y) Manu, VIII, 158-164, Yajn , 11, 47, 53, 54, Bnh., XI, 39, 47 49,
51; Usanas apud Mit. on \ajn, II, 47; Gaut., XII, 41, Vyasa apud
Jagaiinathd, 1, 5, 203 (Dig, 1, 211), Katyayana apud Jagannatha Dig.,
1, .5, 196, 197 (Dig, 1, 207), Vas , XVI, 31; Vihlinu, Vf, 41, 27.39.
See the learned and exhau'^tive judgment of Mookerjee J in
Chhahatm Mahton v. Ganga l*rasad (1912) 39 Cal., 862, Raghunmdan
Sahu V. Badri Teh [1938] All., 330, 333,

Obligation
IS icligious.

Cases m
which It does
not aiise

408

LIABILITY FOR DEBTS.

[rilAP. IX,

'Avvavaharika*

(6) debts due for anything idly promised or promises
without consideration or anything promised under
the influence of wrath (k) ;

(7) suretyship debts due as surety for appearance, or
for confidence or honesty of anothei (/c^) ;

(8) commercial debts and

(9) debts that are not ‘'vyavaharika\

The last category is to be found in the enumeration of Usanas
and Vyasa only and the term has been rendered in different
ways. The text ascribed to Usanas runs thus: “The son need
not pay the fine or the balance of a fine, a toll or the balance
of a toll, or any debt of the father which is not proper” U).

Mr Colebrooke translates the expression ^avyavaharika
as ‘any debt for a cause repugnant to good morals’ (m).
Mookerjee, J , following Bohtling and Roth. Wilson and
Moiiier Will lains, leiideis v\avahatika as lawful, usual or
customary’ (///M This js in accordance with Jagannatha’s
explanation “fhe expression in the text of V\asa (no vyava-
hankam), is explained hv Misra. "exc luded fioin usual clauses*.
Consequently that debt which is contracted for some cnil
purpose consistent with the prescriptive usage of good men,
must be paid by sons and the test, but if it be the reverse,
It need not be discharged” (n) The interpretation of the
term by V N. Mandlik and Jogendranath Bhattacharyya as
‘proper’ is in accordance with the opinion of Apararka (o)
and theie is no inaleiial diflerence between the three

(k) ‘Idly promised’ means according to the Mitakshara ‘promised
to impostors, hard-^ oi wrestlers'. The Milakshara cites a Srnriti
“Fruitless IS a present gi\en to an iinpostur, a bard, a wrestler, a
cfuack, a flatterer, a knave, a fortune-teller, a spy oi a robbei and
the like”. (Mit Setlur ed , p 399, Digest, I, 214)

(AU Brih, XI, 39

(/) The text is asciibed to Usanas in the Mitakshara, the Smriti-
chandrika and the Vvav Mayukha and to Vyasa in the Vivada
Ratnakara. Mit on \ajn, II, 47 (Setlur ed , v399) , Smntichandnkd,
Vyav Kanda, p 397 (Mysore ed 1, Mandlik, 111 (Mayukha, V, i\, 15)

(m) Dig, I, 211.

(nd) Chhahaun Mahton v Ganga Prasad (1912) 39 Cal., 862,

868 ,

(n) Dig, I. 211.

(o) Mandlik, page 113, Bhattacharya HL, 2nd ed , 247 Knight
J defines avyavahanka in Durbar v Khachar (1908) 32 Bom, 348 as
“debts attributable to his (father’s) failings, follies or caprices’’. This
IS not accepted in later cases in Bombay and elsewhere Sumer Singh
V Liladhar (1911) 33 All 472, ( hhakavn v Ganga Prasad (1912)
39 Cal, 862, V enugopala v Ramanadhan (1914) 37 Mad, 458, Ram
hrishna V, Narayan (1916) 40 Bom, 126. Hanmant \ Ganesh (1919)

PARAS. 315-316.] COMMERCIAL DEBTS.

409

renderings. The last category of avyavaharika debts is not
an independent category but only a residuary one comprising
debts which are ejusdem generis with those that have been
enumerated.

The term commonly used in decisions and textbooks to
describe those debts of the father for which the son is not
liable is “illegal or immoral”. The expression was doubtless
originally meant to render ^avyavaharika but it has come to
be used as a compendious term to cover all the cases
enumerated in the Smritis.

§ 316. When Gautama says that a father’s commercial
debts need not be repaid by the son, he is certainly not refer-
ring to the debts incurred in the usual course of carrying on
a business or trade but evidently to sums borrowed for
speculative and hazardous ventures, involving something like
gambling (/))., For, Gautama himself recognises traders and
their usages or Iav\s and almost every Sinriti does the same.
Partnership in tiade was one of the specific titles of law
and (iautama refers to trade as an additional occupation foi
the Vaisya community (p^) . It is impossible therefore to
believe that commercial debts in the ordinary sense were
regarded by Gautama as improper and no other Smriti refers
to It (r/). Intel pi eting the term as a commercial debt, the
courts have howevci held the rule to be obsolete (r).

43 Bom., 612, Bai Mam v Yusuf Ah AIR, 1931, Bom., 229; Hal
Kujmani v Mniu^hUJ (19321 56 Bom, 36, 33, Sddasiva Iyer, I., has
paraphrased it as ‘a debt which is nol supportable as valid bv
legal arguments and on which no right could be established in a
(Hditor*. favour in a Couit of Juslnt’ (37 Mad, 458, 460) Tliat
detiiiition is not particidarly helpful and has been dissented from in
Sanvasayya y. Murthenna (1918) 35 Mil, 661; see also Ramasub-
ramania v Sivahami \ 1 K. 1925 Mad , 841

ip) Gaul, Xll, 41 (vnnifi sulka), Jha, ILLS, I, 207. Whether
(rautama s language means commercial debts or merchant s tolls is
nol clear.

(p^) Gaut. X 49 “The additional occupations of a Vaisya are
agriculture, trade, tending cattle and lending money at interest.”

(f/) Hajagopal v Veeraperumal (1927) 53 M L J., 232, 239, 240,
Huradatta, the commentator of Gautama, explains the term commercial
debt thus -“[f a pci son has borrowed money from somebody on the
condition that he is to repay the principal together with the gain
lliereon, and if lie dies in a foreign coimtiy, while travelling in order
to trade, tlnn that money shall not be repaid by the son” (SB.E
Vol. II, p. 244) Jagaiinatha lakes ‘vaniksulka as a single expression
mtaning commercial tolU and duties payable at wharfs and the like.
According to him, the term sitlka may include nuptial presents.
Dig 1, 211.

(/) A( hutaramayva v Ratnaji (1926) 49 Mad., 211; Rajagopal v.
Veeraperumal A.I R 1927 Mad., 792, 53 M.L.J., 232; Bal Rajaram
V Maneh Lai (1932) 56 Bom., 36, 52» Mulchand v. Jairamdas A,I R,

Commercial

debts.

410

LIABILITY FOR DEBTS.

fCTIAP. IX,

Sulka.

Suretyship

Debts

^ 317 The expression ‘Sulka’ in the Smntis is ambi-
guous. It is sometimes translated as a toll or a tax (r^).
Another meaning of the word ‘Sulka’ is a nuptial piesent,
given as the price of a bride and this has been determined
not to be repayable by the son, evidently on the ground
that it constitutes the esserue of one of the unlawful forms
of marriage { 5 ). But the Allahabad High Couit has dis-
sented from thi<s view and held that as the Asura form of
marriage is common, the expenses thereby incuried are as
binding as in the tase of other marriages (^). This view is
erroneous Haradatta, the eoninienlator of Gautama assigns
the meaning of brideprue lo sulka and is supported
by Sarvajna Naiayana in his gloss on the text in Mariu (u)
This Stands to reason For, a jirornise of hridepiite in the
Asura form of marriage is not enforceable even according to
modern decisions and being an unapproved marriage, neithei
the liability to pa\ the biidepiue nor a debt iruuned for the
purpose of paying it can be lawful 01 piopei (vyavn-
hanka) (u}) ,

^ 318 According to Brihaspali, there are four diffeient
classes of sureties: (1) for appeaiance, (2) for (onfideiKC
or honesty, (3) foi payment of money lent and ( f) for

1955 Bom. 2B7, Parthisingh v Manirhand 0935) 16 Lali , 1077 (badni
tianir>ac tioiis m trade not av^avahanka) , also Raghiinnndau Sahii

V Ihidri Teh 119181 All. 310 3.1.1

Mr J C takes the woid h^aniksiilkd' a" one word

meaiiiiij^ the ineu haul's toll which is jiavahle on tin* sj)ot ( Vol I,
532) 'Ihe son’s iion-iiahilitv for such a debt is inlellijiihle as il is
payable on the spot and as the obligaljon aiis(s as a le-iih of an
evasion foi which he can be (oinicled and fined Apparenth the
obbf»:ation is ex delicto and not ex contraitu In ollu r woids, it
stands on the same footinji as a fine foi an offence (amipaie Sn
T Strange (2 Stra 11 L, 167) who '•ays that debts din foi tolL
and fines are regaided as ‘ixacly money payim nts for which credit
Will have been given at the risk of him by whom lln'v ought to
have been received’.

(s) Keshoiv Rao v Naro 2 Boro, 194 (215)

(t) Bhagirathi v Johhuram (1910) 32 All, 575 where the passage
in the text is cited The All High (Vmrt adds “We have bt en unable
to find any authority for the above proposition” The aiithoiitv is
the gloss of Haradatta, see the next note

(m) Haradatta says “The instance explaining the term ‘fee’ (sulka)
is as follows ‘If a person has promised a fee to the parents of a
woman and dies after the wedding tin 11 that fee doe^ not invtdve hi'^
son /e, need not be paid by him”, SBE, Vol IT. p 241, Sarvajna
Narayana on Manu VHI, 1.59

(m^) Venkatakrishnawa \ Lakshmi Nara\ana (1909) 32 Mad, 183
F,B.. Onkar v Kisan Singh A,1 U , 19.10 Nag, 282,

PARA. 318.]

SURETYSHIP DEBTS.

411

delivery of goods or articles of the debtor (v). Yajnavalkya
recognises the first three classes alone (u;). It is now
settled that the obligation in regard to the first two classes
is purely personal to the sureties and that the sons are not
liable (a;) . But in the case of sureties for payment of money
or for delivery of the debtor’s assets or goods, the sons are
also liable (y). A further distinction is recognised that
while a son is liable to pay a debt contracted by his father
as a surety for payment of money, a grandson is not liable
to pay unless his giandfather, in accepting his liability of

(r) Mami VIIT. 159, 160, Biih , XT, 39, 40, “For appearance, for
confidence, foi payment, and for deliverinjc the d'^sets of the debt(»i ,
it IS for these four diffeient purposes that sureties have been ordained
hv the sages in the system of law. The first says, T will produce that
man', the second* says, ‘fie is a lespet table man’, the thud says, ‘I
will pay the debt’, the fouith says, ‘1 will deliver his assets.’” As
regdids fines, the reason is given “that a son is not liable for a penalty
UK lined bv bis father in expiation of an offence, for neither sms
noi the expiation of them are hereditary”, Nhanee v Hureeram (1814)

1 Bor, 90 (101), analogous to the principle of English law that an
action for a tort does not survive

(le) Yajn. If, 53, 54.

(x) Lakblurunarayana v Hanumantha (1935) 58 Mad, 375, affirming
(1933) 65 M.L T , 609 (suiety bond that a debtor would file an
insolvency petition within a stated time) ; Choudhuri Govinda v
Uayaf^riba (1911) 10 Pal , 94 (guaranteeing loss that may be caused
ls» a minoi’s estate by a guaidian's wd'-te or misappropriation) , Dhir
Psarani v Shiva A IB 1935, Pal, 127, Sahacharan v Satpir Mahant\
(1919) 4 P T. J , 300 (standing Miiety against embez/lement bv a

Tahsildar) , Mahahi/ I*rasa(l \ Sin Narayan (1918) 3 PLJ., 396
( \ eiKloi’s contrail to nuleniiiifv a purihasei wliere the lepresentalion
as to lent is false) but see Raghunandai>s v (.hedram 27 1C, 89,
Hiralal Morwan v Chandiahah (1908) 13 CWN. 9 But if a suiety
foi appearance oi for confidence had bound himself after taking some
property in pledge, then his sons also must pay the surelvship debt
fiom the properly taki n in pledge, Divarakadas v. Kishendas (1933)
55 All., 675.

(>) Tiiharam v Gangarom (1899) 23 Bom, 454, Sitaramayya v
Venkataramannn (1888) 11 Mad., 373; Chettikulam v. Chettikiilam
(1905) 28 Mad, 377, Thangath animal v. Ariinachala (1918) 41 Mad,
1071; Achutaramavya v Ratnaji (1926) 49 Mad., 211, 215, Rasiklal v
Singhesivar (1912) 39 Cal, 843, Maharaja of Benares v. Ramkumar
(1904) 26 All, 611, Mata Dm v Ram Lakhan (1930) 52 All., 153
(guaranteeing payment of money that mav be decreed against a
defendant), Tulshi Prasad v Dip Prakash (1931) 53 All, 695,
(IhakhanUd v Kanhniyalal AIR, 1929, All, 72; Kamesvaramma v.
Venkatasubba (1915) 38 Mad, 1120, Sham Rao v. Shanta Ram AIR.,
1935, Bom. 174, Malak Chand v Hiralal AIR, 1935, Oudh , 510,
a mere hypothecation without personal liability for securing payment
of money hv a thud person is invalid as there is no anteredenl debt,
Satrohan v, Ihnadutt AIR, 1935, Oudh, 456,

412

AVYAVAHARTKA DEBTS.

[chap. IX,

Decisions on
Avyavahanka
<Jebts

surety receives some consideration for it (z ) ; a fortiori a
great-grandson is not liable otherwise.

§ 319. The decisions on the question as to what debts
are avyavaharika or debts for a cause repugnant to good
morals have not been uniform. It is however settled that
the son is liable for the fathei’s debts ex contractu or quasi
ex contractu subject however to the exceptions specified in
the texts already referred to. It is equally settled that a
son IS not liable for his father’s liabilities arising out of his
criminal acts. Accordingly where a father obtains moneys
or goods by the commission of an offence (a) or where he
criminally misappropriates moneys or goods that come to
his hands as an agent or trustee, guardian or receiver,
manager or other employee, his sons are not liable ib). It
IS also well-settled that a son is liable in respect of his father's
liability to account for moneys received by him where his
failure to account is not due to a criminal act In these cases
there was no evidence or finding of criminal breach of trust
or misappiopnation though theie are dicta in some of them
lhat It would not make any difference (c).

On the question of the son’s liability for the father's mis-
appiopriation of moneys, a distinction has been drawn in
some of the cases. In Chhakauri Mahton v. Canga Prasad,
Mookerjee, J., said. “Wheie the taking of the money itself is
not a criminal offence, a subsequent misappropriation by the

(z) Nara\an v V enhatadiana (1904) 28 Bom, 408, (1933) 53

All, 675 siipTUy Lyallpur Hank Ltd v Mehrchand AIR, 1934, Pe&h
132, Mjt on Yajn II, 53, 54, Vyav Maynklia, Mandlik pp 107-108,
Tlio riilino; in 28 Bom, 408 is fjood law, the su^trestion in 53 All,
675, 681 that there is some difference between the Mayukha and the
Mitakshara does not seem to be ju'^tified

ia) Parcman Bass v Wiattii Mahton (1897) 24 Cal, 672.

ib) Mahabir Prasad v Hasdeo Singh (1884) 6 All, 234 (agent),
Hai Mam v Vsufah (1931) 33 Bom LR, 130, AIR 1931 Born, 229
(guardian), Jagannath v Jugal kishore (1926) 48 All , 9 (receiver);
M( Dowell & Co V Rughfiva ( hetty (1904) 27 Mad, 71 (cashier),
Sriniati W idyavanti v. ]ai Dayal (1932) 13 Lab, 356 (employee),
Satyachoran v Satpir (1921) 4 PLJ, 309 (surety for Tahsildar’s
enibe/zleinent) , Narayan v Cooperative Central Bank of Malkapiir
(1938) NLJ, 82, Brij Bihnn v Pnnni f af AIR 1938 All, 377

(c) Mohant Gadadhar v Ghana Shyam Das (1918) 3 PLJ.,
533 (agent), Natasayyan v Ponmisami (1893) 16 Mad., 99 (agent),
Kanemar Venkappayya v Krishnarharva (1908) 31 Mad, 161 (manager
of a hurl or rhil-fund) ; Giirunatham v Raghavalu Chetty (1908) 31
Mad, 472 (administrator), Krishnacharan v. Radha Kanto (1912)
16 I C , 410; Niddha Lai v The Collector of Bulandshahr (1916) 14
ALJ, 610 (agent), Gursarn Das v. Mohun Lai (1923) 4 Lab, 93,
98 (manager), Mahanth v Pandey A.l R. 1937 Pat, 220 (agent);
Hanmant v Ganesh (1919) 43 Bom, 612 (trustee); Brijnath v. Lahshmi
Narain (1932) 8 Luck. 35, AJ.R. 1932 Oudh., 165,

I’ARA. 319.J

AVYAVAIIAUIKA DEBTS.

413

father cannot discharge the son from his liability to satisfy
the debt; but the position is different if the money has been
taken bv the father and misappropriated under circumstances
whi(‘h render the taking itself a criminal offence” (d) . The
distinction howevei would seem to be an aitificial one and
derives no support from the texts of Hindu law declaring the
son’s liability. In Raniasiihramania v. Sivakarni Animal,
Venkatasubba Rao, J., would formulate the rules on the subject
thus: “(1) If the debt is in its inception not immoral, subse-
quent dishonesty of the father does not exempt the son. (2) It is
not every impropriety or every lapse from right conduct that
stamps the debt as immoral. The son can claim imrnunitv
only when the father’s conduct is utterly repugnant to good
moials, or is grossly unjust or flagrantly dishonest” (e).
Probably all that is meant is that it should be clear that it is
repugnant to good morals oi unjust or dishonest. If it means
anything more, ij; would be opposed to the texts of Hindu law
and to the preponderance of authority. Venkatasubba Rao J.
objects to the distinction between a ciime and a breach of a
civil duty as one not recognised by Hindu law (/). The illus-
trations of fines, tolls, gambling and suretyship debts support
that distinction apart from the fact that it is implicit m the
lule as to avyaiahat ika debts. So far as the son is concerned,
the liability to pay the amount misappioprialed arises by
reason of the father’s misappiopriation, and not by reason of
an antecedent relation which might or might not result in such
liability. The extent of the liability itself might be different
ill the two cases. A crime or tort is none the less a crime oi
tort even where the relationship out of which the criminal oi
tortious act arises results from a contract (/^) . If the
liability, notwithstanding a subsequent misappropriation is
regarded as a civil liability, it is clearly tainted with im-
moiality and cannot be treated as proper, customary or for
a cause not icpugnant to good morals. And the son’s
exemption extends not only to a case wheie the debt is of
a criminal nature but also to one where it is due to his
father’s misconduct; the latter giound it is that underlies

{d) (1912) 39 Cal., 862, Tirumalayappa Mudaliar v. Veerabadra

(1909) 19 M.L.J., 759, Venugopala Naidu v. Ramanadhan Chetty

(1914) 37 Mad., 458; Gamda Sanyasayya v. Narella Murthenna

(1918) 35 M.L.J., 661, Venkatacharyulu v. Mohana Panda (1921)

44 Mad., 214, Non V enkataknshnayya v. Kundurthi Byragi (1926)
50 M.L.J., 353; Ratna Mudaliar v. Ellammal A.LR. 1929 Mad., 792;
Jaikumar v. Gauri Nath (1906) 28 AIL, 718.

(e) A.I.R. 1925 Mad., 841, 845.
if) Ib„ 844.

(/i) Sec Defries v. MUne [1913] 1 Ch., 98, C.A.

414

U\BlLm t'Oll bKBl'S

[CUAP. I\,

Casrs in
which son^
are nol liable.

ihr exceptions as to debts contracted for the father's vicious
indulgences. In any case, the cieditor cannot elect to treat
it as a civil liability as against the son.

This question which has been the subject of conflu ting
decisions in the Courts m India was raised before
the Privy Couiieil in the lecent ease of Toshanpal Singh v.
District Judge of Agra, There, the secretary of a school
committee was in charge of a fund deposited in a bank and
was authoiised to draw upon it only for specific purposes
Aftei his death the committee sued his sons to recover fiom
them the amount of the deficiency in the fund The sons
weie held not liable foi the amount of diawings b> the secie-
taiy for unaiithoiised purposes as they amounted to ciiminal
Iireadi of trust within s 4()o of the Indian IVnal Coch'
The Judicial Committee obseived “A father, it was suid. who
accepts a sum of money to be held for another, oi to be
applied in a ceilain way, comes at once undei a liability c\
conliactu oi c/a«6i ex conltaclu, although theie may be no
light of action against him until lie lias been guiltv of some
bleach of duly and this light of action may be enforced
against his sons, although it appeals ilial ullimale]\ the
father has cTiminally made awa\ with the fund This fon-
tenlion was suppoited by elaboiate citation of authority On
the other hand, it was contended by the appellants, in an
argument supported also by a gieat array of cases, that there
w'cre debts of a father with a stigma fai short of criminality
attached, for which his sons aie nol liable'’ Ig) Jlie former
contention was characterised as ‘"a difTicnlt and doubtful
cpiestion of law" which did nol call foi a decision in that
case. The decision of the Piny (Council howevci materially
alTc'c Is the Indian dc^c isions to this extent if up to the
moment of inisappiopriation, the diJt\ of the agcuil, giiaiduui
trustee or manager or other employee was fulfilled, his son«
would nol be liable for the moneys niisappiopnaled e\en
though they came into bis bands onginally in Mitue of a
legal lelalion And in most of the cases wheic the mis-
appropriation was held to be* a subsequent act, thcie was no
light of action acciued against the father prior to the ciiniiiidl
misappropriation (h) .

i 3 19- A Where a father brought a suit in forma pauperis
and was oideied to pay the costs due to Goveiiimenl on the
ground that the claim was false to his knowledge, it was held

ig) Toshanpal Singh v District Judge of Agra (1934) 61 I. A., 350,
360, 56 All., 548, 559.

(A) See Mahanth v. Pandey A I R. 1937 Pal., 220, 22L

PAUAS. 319 a-320.] cases of sons’ liability.

415

that the debt was tainted with immorality and that the sons
weie not liable ii). So loo, where a father bribed a widow
to induce her to adopt his son, it was held that it was an
immoral debt, not binding on the son (/). And where a
father conducts an illegal lottery, his liability to refund the
subscriptions collected by him is not one which would attach
to his sons (A:). So also a debt incurred by the father to
pay a fine inflicted for a criminal offence is not binding
upon the son (/).

§ 320. The exception of “illegal or immoral pin poses”
does not extend to transactions which are imprudent, “un-
conscientiously imprudent” or “unreasonable” (m). So
debts conti acted for needless and wasteful litigation might
altiact the pious obligation of the sons (m). Costs awarded
by thf Com I tigainst the father where he was not success-
ful are recoverable against the sons(n). So too, debts
contracted by .the father for the expenses of defending
himself m suits or proceedings are lepayable by the
sons(o). The liability of the falhei for mesne profits is
one for which the sons cannot claim exemption (p) , So
loo, it has been held that the father’s liability for damages
for a toil committed by him in lelation to property involves
his sons also (^j, for liabilities for ordinary wrongs to
immovable propel ty cannot be said to be immoral debts. It
would however be different m the case of wrongs to

Cases in
which sons
are liable.

(/) Rama Iyengar v Secretary of State (1910) 20 MLJ, 89

(7) Sitaram Pandit v Harihar (1911) 35 Bom, 169,

(A*) Miithusami v. Mytheen Pichai (1937) 1 231.

(/) Savumian v Narayanan Chetty (1914) 15 M L.T., 372, Said
Ahmad v. Raja Barkhandi AIR. 1932 Oiidh , 255, 8 Luck., 40.

(m) Khaliliil Rahman v. Gobind Pershad (1893) 20 Cal, 328,
Ramchandta v. Jung Bahadur (1926) 5 Pat., 198 was not a case where
I hr qiie'slKMi of son’s pjous obligation arose but it was a case of
managing membei’s right to alienate family pioperly for expenses of
litigation; Nand Kishore v kunj Bihari AIR 1933 All, 303

(/i) Prayag Sahu v. Kasi Sahu (1910) 14 (].W.N., 659, 11 C.L.J.,
599.

(o> Sumer Singh v Ltladhar (1911) 33 All, 472 (defamation).
lUmumant v. Sonadhari (1919) 4 P.LJ,, 653 (charge under tlic
(Jaltle Trespass Act, 1871).

(/>) Peary Lai v. Chandicharam (1906) 11 C.W.N., 163, Ram Deo
Prashad v Mt. Gopi (1911) 16 C.W.N,, 383; Yanamandra Papiah v.
Lanka Subbasastrulu (1914) 27 M.L.J,, 276; Ramasubramania v.
Sivakami Animal A.T.R. 1925 Mad., 841,

{q) Chhakauri Mahton v. Ganga Prasad (1912) 39 Cal., 862
(obstruction of an easement) ; but see Durbar Khachar v. Khachar
Hassur (1908) 32 Bom., 348; Chandrika v. Narain (1924) 46 All., 617
(wrongfully cutting trees) , sec also Anibalal v. Bihar Hosiery Mills
Ltd. (1937) 16 Pat., 545.

416

U ABILITY 1‘OU DEBTb.

[chap. IX,

Drbt nprri not
be brncficial.

Ancp'^tral

estate

equally

liable.

Liability of
male issue

pci soil, as foi instance, where a dci iee for damages
IS ohlained against the fathci for defamation, assault,
false imprisonment or malicious piosecution ( r ) Ac-
toidiiig to the custom oi agriculturists in the Ihinjab,
a just debt for which a father is competent to alienate,
family lands as against his son means a debt which is actually
due, which is not immoral, illegal or opposed to public
policy and which has not been contracted as an act of reck-
less extravagance or wanton waste or with the intention of
destroying the interests of the reversioners (5).

§ 321. It follows fioin the texts Lcaiing 011 the subject
that the obligation of the son to pay the debt is not founded on
any assumed benefit to himself, or to the estate, arising from
the origin of the debt, still less is that obligation affected b\
the nature of the estate which has descended to the son, as
being ancestral, or self-acquired “Unless the debt was of
such a nature that it was not the duty of the son to pay it,
the discharge of it, even though it affected ancestral estate,
would still be an act of pious duty in the son By the Hindu
law, the freedom of the son from the obligation to discharge
the father’s debt has re«^pect to the nature of the debt, and
not to the nature of the estate, whether ancestral or acquired
by the creator of the debt” (/).

§ 322. Under the Mitakshaia law as administered in all
the provirues, the liability of the son, grandson and great-
grandson to pay the debts of their ancestor is no longer a
personal liability. They are not liable for such debts
unless they receive assets (u), and the obligations of the

(r) biindfr Lai v Raw'll ujiandan (1924) 3 Pat, 250, Raghiinandan
Saha V Radri Teh (1938) Ail, 330.

(5) Kirpal Singh v Balwant Singh (1913) 40 Cal, 288 (PC) ap
proving Dcvi Ditta v Saudagar Singh (1900) PR, 65

(t) Hunoomanpersaud v Mt Bahooee (1856) 6 MIA, 393, 421,
Girdhare Lall v Kantoo halt (1874) 1 I A, 321, Suraj Bunsi Koer v
Sheo Proshad (1879) 6 I A, 88, 5 Cal, 148, Muttayan Chetty v
Sangili ( 1883 ) 9 I A , 128, 6 Mad , 1 ; Narayanasami v Samidas
(1883) 6 Mad. 293, Bhagbut Pershad v Girja Koer (1889) 15 I A.,
99, 15 Cal , 717

ill) Karpan v Veriyal (1868) 4 MHC, 1, Aga Ilajee v Juggut
Mont., 272, Jamoonah v Madden 16, 227, Ponnappa v Pappuvayyangar
( 1882) 4 Mad , 1 F B , Peda Venkanna v. Sreenivasa (1918) 41 Mad , 136
F B , Suhhdeo v Madhusiidan (1931) 10 Pat , 305, Bisbessor Ram v Rama-
kant Dubey (1934) 13 Pat, 7, Devi Das v. Jada Ram (1934) 15 Lah ,
50, Bulaqi Das v. Lalchand A I.R. 1934 Lah., 865. See also
Jagannath v. Basist AIR 1937 Pat , 195. In Bombay the stricter
rule was for many years applied and the creditors could proceed
against the property of the descendant, but not against his person*
Pranvulluhh v. Deocristin Bom. Sel Rep, 4, Hurbojee v Hurgovind^
Bellasis, 76; Narasimharav v. Antaji (1865) 2 Bom. H.C. (A.C.J.), 61.

^ARas. S22-323.] no personal LiaRILItV.

41?

sons, grandsons and great-grandsons are co-extensive (v) . Not pewnal

There is no difference between sons and grandsons as to the

payment of principal and interest (u;). For the purpose of

this liability of male issue for debts, the assets include not only

the separate or self-acquired property of the ancestor but also

the ancestral property As the liability of the sons,

grandsons, and greatgrandsons to pay their ancestor’s debts

out of ancestral property in their hands depends upon

the nature of the debt, if it is immoral or illegal

they are not liable to pay it to the extent of that property.

But their liability to pay the debts of the ancestor out of
his separate property in their hands is the same liability as
that of the ancestor himself and the son, grandson or great-
grandson, just like any other heir who takes the assets, is not
entitled to claim an exemption on the ground that the debts
are immoral or illegal. i3o too, under the Dayabiia^a law, Dayabhaga
the son’s liabilit)r is the same as that of his father irrespective iaw.
of the character of the debt, for he has no right by birth in
his father’s property which he takes strictly as his heir.

§ 323. The question alluded to in the preceding para- Assets
graph was formerly much discussed : where property descended jo\nt

from father to son, was the whole, or any lesser part of such property,
property, to be treated as assets liable to be taken in payment
of the father’s debts? After some conflict of decisions, it
was Anally settled that the assets comprised not only the
separate property of the father but the whole of the co-
parcenary property in the hands of the father in which the
sons had equal rights with him. Accordingly the rule that
sons are liable for debts which are contracted by the father
for his own purposes, provided they are not incurred for

But in that Presidency also the law was, by legislation, brought into
conformity with the more equitable rule observed elsewhere: Bombay
Act VII of 1866 (Hindus’ liability for ancestor’s debts) ; Sakharam v.
Govind (1873) 10 Bom. H.C., 361 ; Udaram v. Ranu (1875) 11 Bom. H.C.,
76; Lallii Bhagwan v. Tnbhuvan Motiram (1886) 13 Bom., 653; Anant
V. Tukaram (1929) 53 Bom., 463,

{v) Masit Vllah v. Damodar Prasad (1926) 53 I.A., 204, 48 AIL,
518; Sheo Ram v. Durga Baksh (1928) 3 Luck., 700 A.I.R. 1928 Oudh.,
378 F.B.; Babu Ramji v. Rai Mahamaya A.I.R. 1936 Pat., 158; (1934)
15 Lah., 50 supra; Chhotey Lai v. Ganpat Rat (1935) 57 All., 176,
198 F.B.

(w) Lachman Das v. Khunnu Lai (1897) 19 AIL, 26 F.B.; Ladu
V. Gobardhan (1925) 4 Pat., 478.

(w^) In That Mahomed Saib v. Balaji Singh (1934) 57 Mad., 440,
it was held that a provident fund amount standing to the credit of a
deceased Hindu at his death which is paid to his son as a dependent
is not in law assets in his hands.

29

[chap. IX,

418

WHAT ARE ASSETS.

jmmoral or illegal puiposes applies whethei the ancestral
property is of the ordinary partible charactei (x) or is an
impartible estate or Raj (y). But an impartible estate governed
by the Madras Impartible Estates Act, 1904, is not liable
for the debts of a father when they are not such as would
entitle a managing member, not being the fathei, to bind the
estate.

Liability
exists even
when father
is not

manager.

§ 324. The pious obligation of a Hindu to discharge
the debts of his father not tainted with immorality is irres-
pective of the fact whether the father is or is not the manager
of the joint family. Wheie the joint family includes also
persons other than the father and his sons, the interests in
the joint family property that will be liable for the father’s
debts will be the share belonging to the father and his male
issue ( 2 )

Liability
exists
whether
father alive
or dead.

§ 325. The liability of the son is stated by the old
writers to arise, not only after the actual death of the father,
but after his civil death, as when he has become an anchoret,
or when he has been twenty years abroad, in which case his
death may be presumed; or when he is wholly immersed in
vice, which is explained by Jagannatha as indicating a state
of combined insolvency and insolence, in which the father,
being devoted to sensual gratifications, gives up all attempts
to satisfy his creditors, and sets them at defiance (a). And
so when the father is suffering from some incurable disease,
or is mad, or is extremely aged (b). These questions

(jc) Ponnappa v. Pappuvayyangar (1881) 4 Mad., 1, Peda Venkanna
V. Srinivasa (1918) 41 Mad., 136 F.B., Sheo Pershad \ Jung Bahadur
(1888) 9 Cal. 389.

(y) Muttayan Chetty v. Sangili (1883) 9 I A, 128, 6 Mad, 1
reversing (1880) 3 Mad., 370, Sivagiri v. Tiruvengada (1884) 7 Mad,
339; see also Minakshi Naidu v. Immudi Kanaka (1889) 16 LA , 1, 12 Mad.,
142. The liability of the son’s interest to be attached and sold during
his father’s lifetime for the latter’s debts exists in the Punjab where
according to a special custom the son cannot enforce a partition during
his father’s lifetime: Nihalchand v. Mohan Lai (1932) 13 Lah., 455;
Devi Das v. Jadaram (1934) 15 Lah., 50.

( 2 ) Lalta Prasad v Gajadhar (1933) 55 AIL, 283, Virayya %
Parthasarathi Appa Rao (1934) 57 Mad., 190, Chhotey Lai v. Ganpat
Raj (1935) 57 All., 176 F.B., overruling Official Liquidator^ U. P, Oil
Mills Co V. Jamna Prasad (1933) 55 All., 417; Devidas v. Jada
Ram (1934) 15 Lah, 50; Shanmugam v. Nachu (1937) (1)
M.L.J., 278, V enkataramana v. Narayana A.I.R. 1937 Mad, 556,
Sourendra Mohan Sinha v. Han Prasad (1926) 52 I.A., 418, 437, 5
Pat., 135, 155.

(fl) Vishnu., Dig !, 185, Yajn., 11, 50, 2 Stra. H.L., 277, 2
MacN., 282.

(6) Katyayana, Brihar,pati, Dig, I, 192, 193.

PARAS. 325-326. J creditor’s remedies.

419

which were discussed in the earlier cases (c) have ceased
to be of practical importance since 1874, when the Privy
Council decided that as the father can effect a sale of the
family property in favour of the creditor which is binding
upon the son (rf), so the creditor can enforce his claim by
decree and execution against the interests of both the father
and the son in the joint family property a doctrine

which later cases have repeatedly reaffirmed (e).

The law is now well established that under the Hindu law,
the pious obligation of a son to pay his father’s debts exists
whether the father is alive or dead (/) .

§ 326. The creditor has not as was once supposed (g)
two distinct remedies against the son in respect of his father’s
debt, one to enforce the claim against him during the father’s
life and the other to sue him in respect of it after the
father’s death. * It may be taken as established that there is
only one cause of action which arises equally against the
father and the son at the time when the debt is due and
payable. The statute of limitations runs equally against the

(c) Karpan v. Venyal (1868) 4 M.H.C., 1; Muttayan Chetti

V. Sangili (1880) 3 Mad., 370, 381; Fonnappa v. Pappuvayyangar
(1881) 4 Mad., 2, 13, Gurusami v. Chinna Mannar (1882) 5 Mad., 37.

id) Girdharee Lall v Kantoo Lall (1874) 1 I.A., 321 (a Mithila
case) .

(di) Muddun Thakur v Kantoo Lai (1874) 1 I.A., 333.

(e) Sura] Bunsi Koer v. Sheo Prasad (1879) 6 I.A., 88, 5 Cal.,
148; Muttayan Chetty v. Sangih (1883) 9I.A., 128, 6 Mad., 1; Mussamut
Nanonii Babuasin v. Modun Mohun (1886) 13 I. A., 1, 13 Cal., 21,
Khaliliil Rahman v Gobind (1893) 20 Cal, 328, Ramasami Nadan v.
IJlaganatha (1899) 22 Mad. (FB.), 49; Badn Prasad y.Madan Lai (1893)
15 All. (F.B.), 75, Govind Krishna v. Sakharam (1904) 28 Bom., 383;
Dattatraya Vishnu v. Vishnu Narayan (1912) 36 Bom., 68.

(/) Brij Narain v. Mangla Prasad (1924) 51 I.A., 129, 46 All., 95,
superseding the observations to the contrary m Sahu Ram's case
U917) 44 I.A., 126, 39 AIL, 439. In Bnj Narain' s case, the Privy
Council observed: **Sahu Ram Chandra $ case must not be taken to
decide more than what was necessary for the judgment, namely, that
the incurring of the debt was there the creation of the mortgage itself
and that there was therefore no antecedency either in time or in fact.”
The observations in Chet Ram v. Ram Singh (1922) 49 I. A., 228,
44 AIL, 368, which followed Sahu Ram's case must also be regarded
as superseded. (1899) 22 Mad., 49 F.B. supra; Peda Venkanna v.
Srinivasa (1918) 41 Mad., 136 F.B.; Arumugam v. Muthu (1919) 42
Mad., 711 F.B.; Govind^ v. Sakharam (1904) 28 Bom., 383, 389;
Hanmant Kashinath v. Ganesh (1919) 43 Bom., 612; Bed Raja Ram
V. Manik Lai (1932) 56 Bom., 36; Badri Prasad v. Madan Lai (1893)
15 AIL, 75 F.B., Abdul Karim v. Ram Kishore (1925) 47 AIL, 421,
422; Debendra Kumar v. Fyzabad Bank Ltd* (1924) 3 Pat., 63.

(g) Natesayyan v. Ponnuswami (1893) 16 Mad., 99; Ramayya y.
V enkataratnam (1894) 17 Mad., 122.

Suits against
father and
son.

420

LIABILITY POR DEBtS.

[chap, lit,

Limitation.

father and the son from that date (A) . The Madras High
Court has held that the period of limitation for a suit on the
debt would be the same against the son as against the
father (f). The Allahabad High Court has however taken
the view that the article applicable to a suit against a son
in all cases will be article 120 of the Limitation Act and
not the same article as applies to a suit against the father (7) .
This view would seem to be open to question; for the suit
against the son is also upon the debt only and not upon an
independent cause of action. The proceeding against the son is
only an additional method of reaching the property, as in
execution of a decree against the father himself, the son’s
interest can be seized and sold. The fact that the
son’s obligation is confined to debts which are not
immoral or illegal does not make it a different liability (A).
The pious obligation of the son is now no more than a
phrase, for the liability arises at once as a legal liability of the
joint estate. In a recent case, the Bombay High Court has
adopted the view of the Madras High Court (/). Where

however a judgment has been obtained against the father

on the debt, that by its own force creates a debt against the
father which a son is also bound to discharge and a suit
against the son has been held to be not upon the judgment
but upon the debt created by the decree against the father

and the article applicable will be article 120 of the Limit-

ation Act (/n). The debt for which the judgment was
recovered against the father must however be a debt for
which the son would be liable. In Brijnandan v Bidya
Prasad, the Calcutta High Court has held that a suit against
a son upon a mortgage executed by his father for a debt
which is neither antecedent nor for family purposes

{h) Mallesam v. Jugala (1900) 23 Mad., 292 F.B., Aruna-

chalam Chetty v. Raman (1914) 16 M.L.T , 614; Periaswami y

Seetharama Chetti (1904) 27 Mad, 243, F.B., Sri Rajah Partha-
sarathy Appa Rao v Subba Rao (1927) 50 Mad., 249, Lakshman v.
Mahableshwar A.I R. 1931 Bom, 542; Narsingh Misra v. Lalji (1901)
23 All., 206.

(i) (1900) 23 Mad., 292 (F.B.) supra, (1914) 16 M.L.T., 614
supra; (1904) 27 Mad., 243 (F.B.) supra. (1927) 50 Mad., 249
supra.

( 7 ) Narsingh Misra v. Lalji (1901) 23 All., 206; Gaurishankar v
Sheonandan (1924) 46 AIL, 384, 390.

{k) See per Bhashyam Aiyangar J. in Periaswami v. Seetharama
(1904) 27 Mad., 243, 253, citing Beck v. Pierce (1889) 23 Q.B.D., 316.

(/) Lakshman v. Mahableshwar A.I R. 1931 Bom., 542; Ghulam
Khoja V Shivlal (1938) 40 Bom.LR., 381, A.I.R. 1938 Bom., 295.

(m) Periaswami v. Seetharama (1904) 27 Mad., 243 FB; Jagan-
natha Row v. Seshayya (1907) 17 M.L.J., 281; Brijnandan Singh v.
Bidya Prasad (1915) 42 Cal., 1068 F.B.

PARAS. 326-328.] WHEN LIABIUTY DETERMINES.

421

is governed by article 120 of the Limitation Act and not by
article 132 as the mortgage as such is not enforceable as
against the son and consequently there is no charge on the
immovable property (/i).

§ 327. The pious obligation of the son exists only so
long as the liability of the father subsists (o). The son’s
liability is neither joint nor joint and several as those terms
are ordinarily understood in English law (p). The son
cannot be sued alone during his father’s lifetime. The
joinder of the son with the father in a suit to enforce payment
of the father’s debt is for the purpose of preventing the son
from questioning the nature of the debt in execution proceed-
ings against the property. Where the liability of the father
is extinguished by the Bankruptcy law of a foreign country
or where an insolvent is discharged under s. 45 of the
Presidency-Towns Insolvency Act, the son does not continue
liable (g).

§ 328. A son is not under Hindu law liable to pay a debt
of the father which is timebarred as against the father (r).
But he continues to be liable for a debt of the father
kept alive by the latter’s acknowledgment whether before or
after partition ( 5 ) . A promise by a father in writing to pay
his timebarred debt which is valid under S. 25 (3) of the
Indian Contract Act is neither illegal nor immoral as against
the son who will therefore be liable to pay the debt (0 ; such

(n) (1915) 42 Cal., 1068; the starting point of limitation was left
open, as in any case the suit was barred.

(o) Periaswami v. Seetharama (1904) 27 Mad., 243 F.B.; Nara’-
yana v. Virappa (1917) 40 Mad., 581; Mulchand v. Jairamdas A.I.R.
1935 Bom., 287.

(p) (1917) 40 Mad., 581 supra ; A.l.R. 1935 Bom., 287 supra,

{q) (1917) 40 Mad. 581 supra; Magadhu Pillai Rowther v. Asan

Muhammadhu (1919) 26 M.L.T, 88 ; Mayanadan v, Arunachala A.l.R.
1926 Mad., 1106.

(r) Subramania Aiyar v. Gopal (1909) 33 Mad., 308; Lakshman
¥. Mahableshwar A.I.R. 1931 60 m., 542; Achutanand v. Surajnarain
(1926) 5 Pat., 746; Mulchand v. Jairamdas A.l.R. 1935 Bom., 287.

(5) Muniswami v. Kuttimoopan (1933) 56 Mad., 833; see also
Gajadhar v. Jagannath (1924) 46 All., 775, 784 F.B., Lalta Prasad v.
Gajadhar (1933) 55 All., 283, 297.

it) Narayanaswami v. Samidoss (1883) 6 Mad., 293; Ram Kishen
Rai V. Chhedi Rai (1922) 44 All., 628; Gajadhar v. Jagannath (1924)
46 All., 775 (F.B.), 783, 784 F.B.; Champak Lai v. Raya Chand A.l.R.
1932 Bom., 522. It may be a question whether S. 25 (3) of the Indian
Contract Act applies to the son’s promise to pay his father’s timebarred
debt. A Hindu son is not personally liable for his father’s debt; but see
Raja of Ramnad v. Chidambaram (1938) 1 M.L.J., 597, 601 P.C.;
Pestonji v. Bai Meherbai A.I.R. 1928 Bom., 539; Asa Ram v. Karan
Singh (1929) 51 AIL, 983, 965, (where there was neither decision

Liability
ceases with
father’s.

Timebarred

Debts.

422

Sons parties
to creditor’s
suit.

LIABILITY FOR DEBTS. [CHAP. IX,

a renewal of the debt will be a new cause of action against
both the father and the son.

§ 329. Where the sons, being properly parties to the
suit against the father, raise any issue as to the nature of the
debt, any adverse finding will bind them just as any finding
in their favour will disentitle the creditor to attach and sell
their interest in execution (w). The fact that a Court cannot
pass a personal decree against the sons will not prevent the
Court from declaring the liability of their interest to be
taken in execution of that decree. But where the suit is dis-
missed as against the son and decreed only against his father,
the son cannot be liable for the debt unless the dismissal as
against him was not upon the merits. Otherwise the dismissal
of the suit involves the finding that the debt is of such a
nature that the son is not liable for it either because the
debt was immoral or he was released from it or the debt
was not proved against him. The matter is r^s judicata as
between the creditor and the son, and whatever be the ground, as
his liability is excluded, his interest in the family property
cannot be proceeded against in execution of a decree against
his father. Accordingly in Rajaram v. Raja Bakhsh{v),
where in a suit instituted against a mortgagor’s sons and
grandsons, a simple money decree was passed against the
estate of the debtor in the hands of the sons as legal repre-
sentatives of the father and the suit was dismissed as against
the grandsons, it was held that the interest of the grandsons
in the family propeity cannot be taken under Section 53
of the Civil Procedure Code in execution of the decree (w)

nor expression of opinion on the point) , Abani Bilas v. Kanti Chundra
(1933) 38 CWN, 253 But apart from S 25(3) of the Indian
Contract Act, a contract to pay his father’s barred debt may be good,
if there is otherwise consideration for it as again^-t the son, (1938)
1 M.L.J , 597 P.C , supra

(u) Luchman Dass v Giridhur (1880) 5 Cal, 855 FB , Hamphul
Singh V. Deg Narain (1882) 8 Cal , 517, Beni Parshad v Piiran Chand
(1896) 23 Cal, 262. But where a creditor first makes a son of the
debtor a party to the suit and afterwards withdraws the suit as against
him, the case would ordinarily be different Inder Pal v The Imperial
Bank (1915) 37 All, 214 For, the bar under Or. 23 Rule 1 of the
C P. Code IS only of a fresh suit in respect of the same subject mattei
[compare Singa Reddi v Subba Reddi (1916) 39 Mad., 987, 9961
But a withdrawal might in some cases be a waiver of the right to
proceed against the sons altogether

iv) A.I.R. 1938 P.C, 7, 42 C.W N., 200

(w) In Shiam Lai v. Ganeshi (1906) 28 All., 288, where in a suit
against father and son on a pronote by the father, the son was
exempted from liability on the pronote as he was no party to it, it
was held that in execution, the son’s share could be proceeded against.
This would seem to be right as the dismissal of the suit as against

PARA. 330 .]

423

SURAJ BUNSI’S CASE.

§ 330. Starting from the theory that it is a pious duty
on the part of the son to pay his father’s debts,
the Hindu law liability of sons has proceeded step
by step till the debts of the father, not being illegal or
immoral, have become in every sense a liability of the joint
estate of the father and the sons. In 1874, the case of
Girdharee Lull v. Kantoo Lull (rc) laid down that the father
could sell the joint estate of himself and his sons for his
debts, provided they were not immoral and the case of
Muddun Thakoor v. Kantoo Lall (y) established that the joint
estate could be sold in execution of a money decree against
the father. In 1879, the Privy Council, after reviewing the
fundamental principles of the Mitakshara law and the prior
decisions, laid down the following propositions in the case
of Suraj Bunsi Koer v. Sheo Per shad (z) ; “1st, that where
joint ancestral property has passed out of a joint family,
either under a conveyance executed by a father in considera-
tion of an antecedent debt, or in order to raise money to
pay off an antecedent debt, or under a sale in execution of
a decree for the father’s debts, his* sons by reason of their
duty to pay the father’s debts cannot recover that property
unless they show that the debts were contracted for immoral
purposes and that the purchaser had notice that the debts

History of
the doctrine
of pious
obligation.

Sura] Bunsi's
case.

the son was only in respect of his personal liability. In Doraiswami
V. Nagaswami A.I.R. 1929 Mad., 898, the suit against the father
having been on a pronote, if the exoneration in the previous suit was
limited to the personal liability of the son, it would be similar to the
case in 28 All., 288. Otherwise it would be contrary to the decision of
the Privy Council in A.I.R. 1938 P.C. 7. Sinnammal v. Settiya Goundan
(1938) 1 M.L.J., 875. The case of Venkureddi v. Venkureddi (1927)
50 Mad., 535, F.B , relied upon in A.I.R. 1929 Mad., 898 was dif-
ferent as it concerned only the alienees of a son’s share and the
parties were co-defendants and there was no contest and no decision
between them on any point. The decision in Papiah v. Subbasastrulu
(1914) 27 M.L.J., 276, however, is not good law. Where the sons
are proper parties to a suit and they are later on dismissed from the
action, the continuance of the son’s liability would depend upon the
terms of the dismissal of the suit and the circumstances in which it
was made. A dismissal even if it is erroneous, must be held to be absolute
and on the merits in the absence of express indications to the contrary
and will be res judicata as between the creditor and the son. See
explanation V to Section 11 of the C. P. Code. A dismissal based
upon any technical ground which does not involve the negation of the
liability of the son will of course stand upon a different footing. The
consequences of an order striking out a person or of a so called
dismissal which in the context is only a striking out of the party are
of course different. Abdul Sac v Sundara Mudaliar (1931) 54 Mad.,
81 F.B.

ix) (1874) 1 I.A., 321.

(y) (1874) 1 I.A., 333.

(z) (1879) 6 I.A., 88, 106, 5 Cal., 148, 171.

424

UABIUTY FOR DEBTS.

[chap. IX,

What passes
under sale
or mortgage

were so contracted; and, 2ndly, that the purchasers at an
execution sale, being strangers to the suit, if they have not
notice that the debts were so contracted, are not bound to
make inquiry beyond what appears on the face of the
proceedings”.

In 1882, in Muttayan Chetti v. Sangili Vira the
Privy Council held that the whole estate was liable in
the hands of the son for all the debts, which though neither
necessary nor beneficial to the family, were free from anv
taint of immorality. It was also held that the fact that
property in that case was an impartible zamindari could not
affect its liability for the payment of the father’s debts when
it came into the hands of the son by descent from the father.
Since it became assets in his hands, if not duly adminis-
tered in payment of his father’s debts, it was liable,
as against the son, to be attached and ^sold in execu-
tion {a ) . In 1885, in Nanomi Bahuasin v. Modun Mohun, the
Judicial Committee explaining the inter-action of the two
principles of the Mitakshara law, namely (1) that a son takes
a present vested interest jointly with his father in ancestral
estate and (2) that he is legally bound to pay his
father’s debts, not incurred for immoral purposes, to the
extent of the property taken by him through his father,
observed that the effect of the decisions on the theory of pious
obiinration of the sons was destructive of the principle of
independent eopareenarv rights in the sons. That decision
established that if the father’s debt, not having been con-
tracted for immoral purposes is such as to support a sale of
the entiretv of the joint estate, either he may sell the latter
without suit or the creditor may obtain a sale of it by suit.
But the joint sons, not being parties to the execution proceed-
ings or to the sale, are not p,recluded from having the question
as to the nature of the debt tried in a suit of their own, a
right which will, however, avail them nothing unless it can
be shown that the debt was not such as to justify a sale of
the joint estate (6).

§ 331. The question whether the interest which is sold or
mortgaged by the father or sold under a decree for money
or for enforcement of mortgage against him is the entirety of
the joint estate or the interest of the father alone has been
the subject of several decisions of the Privy Council which

(a) (1882) 9 I.A., 128, 6 Mad.. 1, 17-18.

(b) (1885) 13 LA., 1, 13 Cal., 21, 35-36 “trying the fact or the
nature of the debt.^

PARA. 331.]

WHAT PASSES IN EXECUTION.

425

are not easy to reconcile. In DeendyaVs case (c), Hurdey
Narairds case (d), SimbhunatK s case (e), Pettachi Chettfs
case (/), and in Abdul Azizas case (g), it was held that the
interest which passed in execution of the decree against the
father was only the father’s personal interest and nothing
more. But in Nanomi Babuasin*s case (h)^ Bhagbut Pershad*s
case (i), Minakshi Naidu^s case (/), Mahabir Prasad* s
case (k), and Sripat*s case (/), it was held that the entirety of
the family property passed by the execution sale.

The enquiry in all these cases has been what the parties
contracted about if there was a conveyance or what the
purchaser had reason to think he was buying if there was no
conveyance but only a sale in execution of a money
decree (m) . As Lord Watson put it in the course of the
argument in Pettachi Chetti^s case, in the case of a sale in
execution of a money decree, ‘‘the questions are, what did
the Court intend to sell and what did the purchaser under-
stand that he bought” (n). These are questions of mixed
law and fact and must be determined according to the
evidence in the particular case (o) . In Bhagbut v. Mt, Girja
Koer it was decided that the onus is upon the sons when
seeking to set aside such sale to prove that the debt was con-
tracted for an immoral purpose. It is unnecessary for the
creditors to show that there had been a proper inquiry or
that the money had been borrowed in a case of necessity (p).

(c) Deendyd v. Jugdeep Narain (1877) 4 I.A., 247, 3 Cal., 198.

id) Hurdey Narain v. Rooder Perkash (1884) 11 I.A., 26, 10

Cal., 626.

(c) Simbhu Nath v. Golabsingh (1887) 14 LA., 77, 14 Cal., 572.

if) Pettachi Chetty v. Sivagm Zamindar (1887) 14 I.A., 84, 10

Mad., 241.

(^r) Abdul Aziz Khan v. Appayaswami (1904) 31 I.A., 1, 27
Mad., 131.

(A) Mt, Nanonu Babuasin v, Madan Mohun (1885) 13 I. A., 1,
13 Cal., 21.

(0 Bhagbut Pershad v. Mt. Girja Koer (1888) 15 LA., 99, 15
Cal., 717.

(/) Minakshi Naidu v. Immudi Kanaka (1889) 16 LA., 1, 12
Mad., 142.

ik) Mahabir Pershad v. Markunda Nath (1889) 17 LA., 11, 17
Cal., 584.

(/) Sripat V. Tagore (1917) 44 LA., 1, 44 Cal., 524.

im) (1887) 14 LA., 77, 83, 14 Cal., 572 supra.

in) (1887) 14 LA., 84, 10 Mad., 241, 248 supra.

(o) (1904) 31 LA., 18, 27 Mad., 131 supra.

(p) (1888) 15 LA , 99, 15 Cal., 717 supra.

426

LIABILITY FOR DEBTS.

[chap. IX,

Father’s aliena-
tion to pay his
antecedent
debt

The meaning
of ‘antecedent
debt*.

§ 332. While it is a pious duty for a son under the
Mitakshara law to pay such debts of his father as were not
contracted for immoral purposes, it is also according to the
Hindu law a pious duty for a person to pay off his own debts.
From these two propositions, it follows that an alienation by a
father living jointly with his sons under the Mitakshara law to
pay off his antecedent debts, not incurred for immoral purposes,
is an alienation by him for the performance of indispensable
duties within the meaning of the Mitakshara I, i, 29 (q) ,
Consequently, the distinction between alienations by convey-
ance and those made by process of execution is that the former
can be made only for justifying necessity or for the purpose
of raising money in order to satisfy pre-existing debts (rl.
Paradoxically enough it would seem that the doctrine is not
based on any necessity for the protection of creditors but is
rested upon the pious obligation of the sons to see that their
father’s debts are paid (s) ; in consequence, the sons’ share is
placed at the disposal of the father so that he may be able
to pay off his debts so as to relieve his sons from their
duty (^). The distinction between an involuntary sale of the
father’s property for the satisfaction of his own debt and a
voluntary disposition by him consists in the limitation that in
the latter case the debt must be antecedent to the transfer of
property and not contemporaneous with it (u). Antecedent
debt means an indebtedness of the father prior in time to
and independent in origin of the particular dealing with the
family property, whether by way of sale, mortgage or other
disposition which it is sought to enforce against the son (v) .
It was possible to have taken the view that while the distinction
between a sale for the purpose of paying an antecedent debt
and the contracting of a debt was a real one, a mortgage
debt was none the less a debt within the meaning of the
texts of Narada and Brihaspati and there was no need to dis-
tinguish between a secured debt and an unsecured debt. This

iq) Upooroop Teivary v. lAiUa Bandhajee (1881) 6 Cal, 749, per
M liter, J.

(r) (1879) 6 I.A, 88, 105, 5 Cal, 148 supra

is) Sat Narain v Das (1936) 63 I A , 384, 395, 17 Lah., 644.

it) In other words, it is on the principle of the liability of the
son’s share for the discharge of his father’s debts that the father’s
power of disposal of the son’s share for the satisfaction of his debts
IS based.

(a) Shanmukam v. Nachu A.I.R 1937 Mad., 140, (1937) 1, M.L.J ,
278.

(v) An antecedent debt need not necessarily be in favour of the
person to whom the particular alienation is made. Pandurang v.
Bhagwandas (1920) 44 Boni., 341.

PARAS. 332-333.]

ANTECEDENT DEBTS.

427

limitation itself, though anomalous on the face of it and open
to obvious criticism, has been explained by Lord Dunedin
as a more or less desperate attempt to reconcile conflicting
principles and is now firmly established on the principle of
stare decisis («;).

Accordingly, a mortgage executed by a father for his own
purposes and not justified by any family necessity is not
binding on his sons as a mortgage. The debt, however, as an
unsecured debt would attract the pious obligation of the
sons and can be recovered under a decree for money by
attachment and sale of the joint estate (a?). The liability
under a mortgage which is not for an antecedent debt will
however render a subsequent mortgage or a sale binding
upon the sons as the earlier mortgage would be antecedent to
the later alienation (y). So too, as the debt of the
father is the debt of the son also, it would be an antecedent
debt so as to enfpower the latter to dispose of the joint family
property belonging to himself and his son (z) .

§ 333. On account of conflicting decisions, a Full Board
of the Judicial Committee examined the whole subject in
Bri] Narain v. Mangla Prasad and Lord Dunedin laid down
the following five propositions: —

(1) The managing member of a joint undivided estate
cannot alienate or burden the estate qua manager
except for purposes of necessity; but

{w) Brij Narain v. Mangla Prasad (1924) 51 LA., 129, 137, 46
All., 95; see also Venkataramanaya v. V enkataramana (1906) 29 Mad.,
200 F.B.; Shanmugam v. Nachu A.I.R. 1937 Mad., 140, (1937) 1
M.L.J., 278.

{x) Kandaswami v Kuppu (1920) 43 Mad., 621; Rayalu Aiyar v.
V airavanchetty 1936 M.W.N., 866, a sin .pie money decree can be
passed against a minor in respect of a junior member’s debt for family
purpose; Santa Rao v. Varnajee Vapujt (1923) 46 Mad., 64, 79; Sami
Ayyangar v. Ponnammal (1898) 21 Mad., 28; Ghulam Khoja v. Shivlal
(1938 ) 40 Bom.L.R., 381, A.I.R. 1938 Bom., 295.

(y) (1924) 51 I.A., 129, 46 All, 95 supra approving Armugam v.
Muthu (1919) 42 Mad, 711 F.B.; Ram Rekha v. Ganga Prasad (1927)
49 All, 123 F.B.; Gopal Das v Topan Das (1935) 16 Lah , 624;
Satyanarayana v. Satyanarayana Murthi (1926) 50 M.L.J., 144; Gauri-
shankar v. Sheonandan (1920 ) 46 All., 384.

(z) Sheo Ram v. Durga Baksh A.T.R. 1928 Oudh., 378 F.B., 3
Luck., 700. In Rayalu Aiyar v. V airavanchetty (1936) M.W.N,, 866
where a family consisted of a father, son and grandson it was held
that the son had no right to mortgage his son’s share of the family
properly even though it was to secure repayment of his (the son’s)
father’s antecedent debts. This view is erroneous and has been dis-
sented from in Shanmugam v. Nachu (1937) 1 M.L.J., 278, A.I.R.
1937 Mad., 140; see also Guru Din v. Rameshwar A.LR. 1933 Oudh.,
102 .

Brij Narain*$
case.

428

UABILITY FOR DEBTS.

[chap. IX,

(2) If he is the father and the other members are the
sons, he may, by incurring debt, so long as it is
not for an immoral purpose, lay the estate open
to be taken in execution proceeding upon a decree
for payment of that debt.

(3) If he purports to burden the estate by mortgage,
then unless that mortgage is to discharge an ante-
cedent debt, it would not bind the estate.

(4) Antecedent debt means antecedent in fact as well
as in time, that is to say, that the debt must be
truly independent and not part of the transaction
impeached.

(5) There is no rule that this lesult is affected by
the question whether the father, who contracted
the debt or burdens the estate, is alive or dead (a) .

A mere formal antecedency in time where there is no real
antecedency in fact is insufficient to make a debt an antecedent
one. In other words, the prior debt must be independent of
the second debt and the transactions must be dissociated in
fact so that they cannot be regarded as part of the same
transaction (b) . While a timebarred debt of the father cannot
as such be enforced against the sons, it has sufficient vitality
to support an alienation by way of sale or mortgage by the
father to pay it off (c). It has also been held that a debt

(a) (1924) 51 LA.. 129, 46 All., 95.

(b) Narain Persad v. Sarnam Singh (1917) 44 I.A., 163, 39 All,
500; Sahu Ram v. Bhup Singh (1917) 44 I.A., 126, 39 All, 437; Chet
Ram V. Ram Singh (1922) 49 I. A., 228, 44 All., 368, Jogidas v. Ganga
Ram (1917) 21 C.W.N., 957 P.C , Mian Karim v Dargah Pit Rattan
(1931) 35 C W N , 1221, P C,, 51 I.A., 129, 46 All , 95 supra, Bhim Singh
V Ram Singh (1924) 46 All, 301; Chandra Deo v. Mata Prasad (1909)
31 All, 176 FB.; Ram Rekha Singh v. Ganga Prasad (1927) 49 All,
123 F.B.; Babu Ram v. Mahadev Ram A.I.R. 1927 All., 127; Shaikh
Jan Mohammad v Bikoo Mahto (1928) 7 Pat., 798, Badri Prasad v.
Madanlal (1893) 15 All., 75 F.B.; Butamal v Gopalsingh (1930) 11
Lah., 164; Iqbal Singh v. Jasmer Singh (1934) 15 Lah., 715, 723.
Madhusudan v. Bhagwan (1929) 53 Bom., 444, Jai Narain v. Mahabir
Prasad A.I.R. 1926 Oudh., 470, 2 Luck, 226; Thirunavukkarasu Chetty
V. Muthuknshna (1931) M.W.N., 467 (interval of few days) ; Mum
Lai V Gian Singh A.I.R. 1931 Lah., 717; Ram Karan v Baldeo [19381
Pat., 168.

(c) Gauri Shanker v. Sheo Nandan (1924) 46 All., 384; Gajadhar
V. Jagannath (1924) 46 AIL, 775 F.B.; Jagadambika v. Kali Singh
(1930) 9 Pat., 843; Naro Gopal v. Paragauda (1917) 41 Bom., 347;
Lalji Singh v. Muchkund A.I.R. 1934 Pat., 699; Vishvanath v.
Shankargir AJ.R. 1934 Nag., 264.

l»AliAs. 353-334.1 sUmMaHy of LAW.

429

which is not due and payable is sufficient to support a
father’s alienation (d) .

§ 334. From these and other decisions, both of the Privy
Council and of the Courts in India, the following proposi-
tions are deducible: —

1. In cases governed by the Mitakshara law, a father may
sell or mortgage not only his own share but also the share
of his male issue in family property, for the purpose of
satisfying antecedent debts of his own, not incurred for any
family necessity or benefit, provided they are not immoral or
illegal (e) and the sale or mortgage may be enforced against
his sons by suit or proceedings to which they are no parties.

2. Whether the sale or mortgage passes the father’s
interest only or the entire interest of both father and sons
in the property sold or mortgaged depends upon the
intention of the* parties to be gathered from the instrument
of sale or mortgage and from surrounding circumstances (/) .

3. A creditor may enforce payment of the personal debt
of a father, not being illegal or immoral, by attachment and
sale of the entire interest of father and sons in the family

id) Damodaram v. Bansilal (1928) 51 Mad., 711; Subbarayulu r.
Ratnam Aiyar A.l.R. 1931 Mad, 615; Baburao v. Pandhannath A.I.R.
1930 Nag., 43. An unascertained sum of money such as a debt incurred
by acceptance of bills in respect of goods can be a good antecedent
debt. Bal Rajaram v. Maneklal (1932) 56 Bom., 36; as to unliquid-
ated damages, see Mian Karim v. Dargah Pir Rattan (1931) 35 C.W.N.,
1221, P.C. Neither pressure nor legal necessity is required to justify
alienation for an antecedent debt. Rama Rao v. Hanumantha (1929)
52 Mad., 856; Tulshi Ram v. Bishinath (1928) 50 All., 1; Babusingh
V. Behan Lai (1908) 30 All., 156. A contract for a loan which never
was completed, to pay off a previous debt which was otherwise dis-
charged cannot be an antecedent debt: Jawahirsingh v. Udai Parkash
(1926) 53 I. A., 36, 48 AIL, 152. As to pre-emption debts, see Kishen
Sahai V. Ragunath (1929) 51 All., 473. A father alone has the right
to burden the family estate for his antecedent debt; Gunni v. Dalchand
(1931) 53 AIL, 923; Chiranji Lai v. Bankey Lai (1933) 55 AIL, 370;
but a father has no power to alienate his son’s interest after it is
attached by his creditor, Subbraya v. Nagappa (1909) 33 Bom., 264.

(c) Girdharee Lai v. Kantoolal (1874) 1 I.A., 321; Suraj Bunsi
Koer V. Sheo Per sad (1879) 6 I. A., 88, 5 Cal., 148; Nanomi Babuasin
V. Madan Mohan (1885) 13 I. A., 1, 13 CaL, 21; Brij Narain v. Mongol
Prasad (1924) 51 I. A., 129, 45 All., 95; Lai Bahadur v. Ambika

Prasad (1925) 52 I. A., 443, 47 AIL, 795; Ram Rekha v. Ganga

Prasad (1927) 49 AIL, 123 F.B.; Iqbal Singh v. Jasmer Singh (1934)
15 Lah., 715; Adurmoni v. Chowdhry (1873) 3 Cal., It Ramphul v.
Deg Narain (1883) 8 CaL, 517; Narayanacharya v. Narso (1876)
1 Bom., 262; Cooverji v. Dewsey (1893) 17 Bom., 718.

(/) Simbhunath v. Golapsingh (1887) 14 I.A., 77, 14 CaL, 572;
Daulat Ram v. Mehrchand (1887) 14 I. A., 187, 15 CaL, 70; Shan-
mukam v. Nachu (1937) 1 M.LJ., 278; compare GharibuUah v.

Kholak (1903) 30 LA., 165, 25 AIL, 407.

Summary of
decisions.

430

LIABILITY FOR DEBTS.

[chap. IX,

property and it is not absolutely necessary that the sons
should be parties either to the suit itself or to the proceed-
ings in execution (g).

4 The question whether the execution sale passes only
the father’s interest in the property sold or the whole pro-
perty including the son’s interest depends upon the form of the
execution proceedings including the sale proclamation and
sale certificate as well as upon the proceedings in suit in
which the decree was made (A). While the absence of the
sons in the execution proceedings may be a material consi-
deiation, there is no rule that the coparcenary inteiest will
not pass by an execution sale where the suit was against the
father alone. The question in each case will be whether
the purchaser bargained and paid for the entirety of the
interest. It is not a question of what the Court could have
done or what it ought to have done but what it did and
what was put up for sale and what was purchased (i). This
lb in each case a mixed question of law and fact as to what
the Court intended to sell and what the purchaser expected
to buy. The Court cannot sell more than the law allows, but
if It intended to sell less than it might have sold or less than
it ought to have sold, and this was known to the purchasers,

(^) (1874) 1 I A., 321 supra, (1879) 6 I A., 88 supra, Muttayan-
chctty bangUt (1883) 9 I A, 128, 6 Mad., 1 supra, 14 J A , 77 supra,
Pettachichetty v bivagiri (1887) 14 LA, 84, 10 Mad, 241, Bhagbut
Pershad v. Mt Girja Koer (1888) 15 LA, 99, 15 Cal., 717, Minakshi
V Immudi (1888) 16 I.A., 1, 12 Mad., 142; Mahabir Pershad \
Markunda Nath (1889) 17 I A , 11, 17 Cal, 584, Abdul Aziz \ Appaya^
swami (1903) 31 I.A , 1, 27 Mad, 131, Jagabai v Bhukhan Das
(1887) 11 Bom, 37, Vishvanath v Keshavbhat (1934) 58 Bom, 273,
Sabha Ram v Kishan Singh (1930) 52 AIL, 1027, Mahadeo Ram v
Ganesh A 1 R 1937 Pat., 517; Sardarilal v. Bharat National Bank Ltd
(1932) 12 Lah., 495, Sarju Prasad v Ram Saran Lai A.I.R. 1931 All,
541, Chhotey Lai v Ganpat Rai (1935) 57 All, 176 F B., Jainarayan
V. Sonaji A.I.R. 1938 Nag., 24

ih) (1888) 15 I.A., 99 supra, (1886) 13 lA, 1 supra, (1877)

4 LA., 247 supra, (1883) 11 I A, 26 supra In Maruti v. Babaji

(1891) 15 Bom., 87, Bern Prasad v. Purdan Chand (1896) 23 Cal., 262,
Timmappa v. Narsinha (1913) 37 Bom., 631, and Hanmandas v
Valabhdas (1919) 43 Bom., 17 it was held that the father’s interest
alone passed. In Cooverjy v. Dewsey (1893) 17 Bom., 718 and in
Md Hussein v. Dipchand (1892) 14 AIIm 190, and V eerasoorappa v.
Errappa (1906) 29 Mad, 484, it was held that the entire interest
passed.

(i) (1887) 14 LA, 84 supra, Nanomi Babuasin v. Madun Mohun

(1887) 13 I A., 1, 13 Cal., 21; Doulat Ram v. Mehr Chand (1888) 14

LA.. 187, 15 Cal.. 70.

PARA. 334 ]

SUMMARY OF LAW.

431

no more will pass than what was in fact offered for sale (;).
Where the son intervenes in execution and fails to get a definite
decision in his favour that it is only the father’s share that
should be sold, the inference is that the entirety of the estate
passes to the purchaser at the Court sale. It is the substance
and not the mere technicalities of the transaction that should
be regarded (A;).

Where a defendant possesses both an individual and a
representative character, and where he has been sued for a
debt which would bind the whole family which he represents,
and where execution is taken out against him under the
decree, the Court is at liberty to look at the judgment to see
what was intended to be sold under his right, title and
interest, and may treat the decree as binding the whole family
which is represented by the defendant, and as properly
executed against the joint family property (Z).

5. Where a sale or mortgage is made by the father
without his son joining in it in order to satisfy his antecedent
debt, or when in execution of a decree for money or on a
mortgage by the father, the ancestral property is sold, the
sons, not being parties, are entitled to have the nature of the
debt tried in a suit of their own (m).

(/) Deendyal v Jagdeep Narain (1877) 4 I.A., 247, 3 Cal., 198;
Hurdey Narain v. Rooder Prakash (1883) 11 I.A., 26, 10 Cal., 626;
(1887) 13 LA., 1 supra, (1887) 14 LA., 84 supra; (1887) 14 LA., 77
supra, (1882) 9 LA., 128 supra; (1904) 31 LA., 1 supra; Pemsingh v.
Partab (1892) 14 All. 179 F.B.

(A) Mahabir Pershad v. Markunda Nath (1889) 17 LA., 11, 17
Cal., 584; Snpatsingh v. Tagore (1917) 44 LA., 1, 44 Cal., 524.

(l) Bissessur Lall v. Luchmessursingh (1879) 6 LA., 233, 5

C.L.R., 477; Darbhanga v. Coomar (1872) 14 M.I.A , 605; Jugal
Kishore v. Jotindra Mohun (1883) 11 LA., 66, 10 Cal., 985; Jairam
\. Joma Kondia (1887) 11 Bom., 361; Jankibai v. Mahadev (1894)
18 Bom., 147; Lala Parbhu v. Mylne (1887) 14 Cal., 401; Hansaran
V. Bhubanesvan (1890) 15 LA., 195, 16 Cal., 40; Sheo Pershad v.
Rajkumar (1893) 20 Cal., 453; Radha Prasad v. Ramkhelawan (1896)
23 Cal., 302; Devji v. Sambhu (1900) 24 Bom., 135; Sripat v. Tagore
(1917) 44 LA., 1, 44 Cal., 524.

(m) Some of the dicta of the Privy Council and of the Courts in
India would entitle the son to dispute the fact of the debt also.
Nanomi Babuasm v. Modun Mohun 13 LA., 1, 18, 13 Cal., 21 ;
Ramasamayyan v. Viraswami (1898) 21 Mad., 222, 226; Kishen
Pershad v. Tipan Pershad (1907) 34 Cal., 735, 742. It is fairly
clear from the more recent decisions that in a suit upon a
debt against the father, he represents the sons when they are
not made parties so far as the factum of the debt is concerned and the
judgment against the father itself creates the debt. Fraud or collusion,
of course, will always be an exception. When a decree is passed
against the father for a debt proved against him, it is not easy to see
how the sons can dispute the father’s liability under it except of
course in respect of the nature of the debt regarding which the father

432

bUltttEN OP PROOF.

tc«AP. IX,

Burden of
proof.

Burden of
proof of
immorality
of debts.

§ 335. Where a Hindu son comes into Court to assail a
mortgage made by his father or a decree passed against his
father or a sale held or threatened in execution of such a
decree — whether it be upon a mortgage security or in respect
of a simple money debt — where there is nothing to show any
limitation of the interest sold or threatened with sale or
charged in a security or dealt with by a decree, it rests upon
him, if he seeks to escape from having his interest affected
by the sale, to establish that the debt which he desires to be
exempted from paying was of such a nature that he, as the
son of a Hindu, would not be under a pious obligation to
discharge or that his interests in the property were not covered
by the mortgage or touched by the decree or affected by the
sale certificate (n).

§ 336. The burden of proof which is upon the son to
establish that the debts in question were incurred by his
father for immoral purposes is not discharged by proving
a general charge of immorality but there must be proof of
direct connection between the debt or the expenditure and
the acts of immorality (o) . It is unnecessary for the alienee
or the creditors to show that there had been a proper inquiry
or that the money had been borrowed in a case of
necessity (p).

could not represent the sons. Natesayyan v. Ponnusami (1893) 16
Mad., 99; Joharmal v. Eknath (1900) 24 Bom., 343; Periaswami v.
Seetharama (1904) 27 Mad., 243, 252, F.B.; Karansingh v. Bhup
Singh (1905) 27 All., 16, F.B., Inder Pal v. Imperial Bank Ltd*
(1915) 37 All, 214; Mohan Lai v. Balaprasad (1922) 44 All., 649,
Abdul Karim v. Ram Kishore (1925) 47 All., 421, Chander Pershad
V. Sham Koer (1906) 33 Cal., 676.

in) Pemsingh v. Partabsingh (1892) 14 All., 179 F.B., approving
Bern Mahdo v. Basdeo Patak (18^) 12 AIL, 99 and Bhawani Baksh
V. Ram Dai (1891) 13 AIL, 216.

(o) Shyam Narain v. Suraj Narain (1932) 64 M.L.J , 148 P.C.,

Sri Narain v. Lala Raghubans (1912) 25 M L J , 27, 17 C.W.N., 124 P.C .
Venkayya v. Narasimha (1938) 1 M.L.J., 33, dissenting from Guru-
murthi V. Subrahmanya (1928) 107 I.C., 401, Vlfat Rai v. Tejnarain
(1927) 8 Lah., 632, Ra/ Kishore v. Madan Gopal (1932) 13 Lah., 491,
Sohan Lai v. Kartar Singh (1935) 16 Lah., 320, Dattatraya v. Vishnu
(1912) 36 Bom., 68, 73, Brijmohan v. Mahabeer (1936) 63 Cal., 194,
Tulshi Ram v. Bishnath Prasad (1928) 50 AIL, 1, Ganeshi Lai v.
Bhagwan Singh (1936) A.W.R., 547; Devanandan Prasad v.

Harihar Prasad A.I.R. 1935 Pat., 140, Rajeshwar v. Mangni Ram
A.I.R. 1933 Nag. 89; Bal Rajaram v. Manekh Lai (1932) 56 Bom,
36, 53, 54; Nannu Shankar Tawker v. Bashyam (1938) M.W.N., 126.

(p) Bhagbut Pershad v. Mt, Girja Koer (1888) 15 I.A., 99, 15
Cal., 717; Mata Dm v Gaya Din (1909) 31 AIL, 599, Johan
Singh V. Hardat Singh (1935) 57 AIL, 357. Suraj Bunsi v
Sheo Prasad (1878 ) 6 I. A., 88, 1()6, 5 Cal., 148, Babu Singh v. Bihan
Lai (1908) 30 AIL, 156, Tulshi Ram v. Bishnath Prasad (1928) 50
All., 1.

FAUA. 660 >]

LIABILITY FOR DEBTS.

433

In Muddun Tlialcoot v. Kantoo Lall {q) the Judicial
Coiniuiltee obscived lhat a piiithaber under an execution
is not bound to go beyond the decree to ascertain whether the
Court was right in giving the decree oi having given it, in
putting up the property for sale under an execution upon it.
But the immoral character of the debt is certainly no defence
to an action against the father where he alone is sued or if it
is to be regarded as open, he might not set it up. In either
view, the decree would be a proper one as against the father
and properly enforced against his interest in the pro-
perty (r) . But when the creditor proceeds by way of
attachment and sale in execution of a money decree, the son
can object that his interest is not liable on the ground that
the debt evidenced by the decree was contracted for illegal
or immoial pui poses. Where he does not succeed and his
interests are not released from attachment, he is entitled to
bung a suit in which the whole question can be determined
under Or. 21 R. 63 of the Civil Procedure Code.

While the requirement lhat the ci editor or the alienee

liuni the fathei should have notice that the debt is contracted
loi iniinoral purposes is consistent with principle, the other
reqimement that, though a judgment ci editor had notice, the
jnii chaser at an execution sale, when he is not the decree-

holder, should also have had notice that the debts wcie

conti acted foi immoral purposes, if his pm chase is to be
set aside, would appeal to cieate a cliffidilty (.s), unless, ol
ionise. It IS the duly ol the sons to intervene in execution
and object to the sale of their interests on the ground that the
fathei ’s debt is illegal or immoral. Where the sons aie
minors, to cast upon them such a duty at the peril of losing
all their interests in the joint family pioperty, even in a case
where the debt is immoral, seems inconsistent with the special
protection which the law generally affords them. It does
appear singular that a purehasei under a decree should be
entitled, as against the sons, to assume the existence of a state
of facts which was not and could not have been adjudicated
upon in the suit against the father alone. Of course, all that
the sons can claim is, that they ought not to be barred from
trying the nature ol the debt in a suit of their own.

(g) (1874) 1 LA.. 321, 334.

(r) Vishvanath v. Parkash Chandra A.I.R. 1935 All., 278.

(i) (1879) 6 I. A., 88, 106, 5 Cal., 148. Where the creditor luinbclf
tb the purchabC'l ihe rule is different.

30

Money

decree.

Notice of the
nature of the
debt.

434

LlABlLlTV li’OR DtBTS.

[chap. IX,

In cases \\here ihe property is pul up for sale under
a mortgage decree, no attachment takes place {t) and under
the Civil Proceduie Code, 1908, the proceedings for sale under
the mortgage decree arc not proceedings in execution. To
lequiie that a purchaser at the sale, if he is not the decree-
holder himself, should have notice that the debt was illegal
or immoral involves either that the sons who were minors
oi majors should apply themselves to be made parties even
though the creditoi does not choose to implead them as
jiarties to the suit or should give public notice at the time
of the settlement of the proclamation of sale to all intending
purchasers of their objections. While it is true that in many
cases iheie is collusion between the father and the sons m
seeking to set aside a sale on the ground of immoialilv,
and such suits invariably fail, that can be no

ground foi imposing upon the sons a duly to in-

tervene m the suit or in execution which the Civil Pro-
cedure Code does not impose upon other litigants at the risk
of being totally bailed ol their lights In Sutaj Bunsi\s
case {u ) vvheie the sons piel cried a claim m exe( ution pioceed-
ings and objected to the sale of their mteiest. the Couit refused
to adjudicate upon it and allowed the sale to lake place. I'iu'
Judicial Committee obseived. 'Their Lordships think that the
respondents (purchasers) must be taken to have notice, actual
or constructive, of the plaintiff s objections and of the ordei
made upon them and therefore to have purchased with
knowledge of the plaintiff’s claim and subject to the result
of this suit” (rj .

Sale^ in
rxcciiljon of
a (leciee
mforcing a
mortgage.

S 337 Wheie a father has mortgaged the familv piopeilv
for an antecedent debt, not of immoral or illegal character,
a sale under a decree against him enforcing the mortgage will
bind his sons, even though they have not been made parlies

(i) Dayathand v llenuhund (1880) \ Bom, 515 FB, Kayumth
V. Sadasiv (1893) 20 Cal, 805, Knshnamma v Perumal (1885) 8
Mad., 388.

(u) (1879) 6 1 A , 88 5 (.dl., 148, Krishnaji \ I ithal (1888) 12
Bom., 625, Ram Chander v. Md Nur (1923) 45 All, 545, 547,
Luchman Doss v Gindhur (1880) 5 Cal, 855 FB , Ramphul Singh
V Dej NaraiJi (1882) 8 Cal., 517, Bern Pershad v Puranchand (1896)
23 Cal, 262, Trimbak v Narayan (1884) 8 Bom, 481, Mahabir v
Basdeo (1884) 6 All, 234 While a stranger bona jide purchasei
is entitled to assume the validity of a simple money decree and the
authority to sell the judgment-debtor’s interest, he cannot assume that
the decree and the authority to sell would bind the interests of persons,
not parties to the decree.

(v) Fur a contrary result arising from the son’s attempted inter-
vention, see Mahabir Prasad v, Markunda Nath (1889) 17 IJV., 11.

PARAb. 337-338.] LIABILITY IN EXLOlJTlON.

435

to the suit (m;). It is now settled that the sons oi other
coparceners are not necessary parties to such a suit, for the
father or other managing member effectually represents the
others (x ) . The sons therefore will not have any right of
redemption after a foreclosure or sale under a decree which
IS binding upon them The right to redeem is extinguished
unless the sale or foreclosure is set aside (y) . Where however
the son is not a party to the suit, he is entitled to have the
decree and sale set aside and as a consequence, to redeem,
on the ground that the debt was tainted with immorality and
was thciefore not binding upon him ( 2 ). Where after a
11101 tgagc there was a partition lietween him and his sons and
the fathei cannot represent the inteicst of the sons in the
Cl editor’s suit upon the moilgage, the sons’ right to redeem
where they are not made paities to the suit lemains iin-
afiected (a) and they are not bound to have the sale set
aside. The latter remedy is also open to them on proof ol
the immorality of the debt.

338. Where a Hindu lathei died after a decree for ^^>0115 liable
money was passed against him in a suit to which he alone cxctuiiun,
was a party and before any attachment in execution
was made, there was, prior to the enactment of section 53
of the Civil Procedure Code, 1908, a difference of opinion
between the High Courts as to whether the liability of a

{w) Suraj Bunu Koer v. Sheo Pershad Singh (1878) 6 LA., 88,
5 Cal., 148, Ponnappa v. Pappuvayyangar (1882) 4 Mad., 1, 9 Mad.,
343, Srinivasa v Yelaya (1882) 5 Mad, 251, Raniphul Singh v Deg
Narain (1882) 8 Cal., 517, Krishnamma v. Perumal (1885) 8 Mad., 388;
Sadashiv Dinkar v. Dinkar Narayan (1882) 6 Bom., 520; Shiv Ram v.
Sakharam (1911) 33 Bom., 39, Hurdey Narain v. Rooder Perkash
(1883) 11 LA., 26, 28, 10 Cal., 626, Basamal v. Maharaj Singh (1886)
8 All., 205, Mathura Prasad v. Ranichandra (1903) 25 AIL, 57, Lai
Singh V. Pulandar Singh (1906) 28 AIL, 182; Sundararaja v. Jagannada
(1882) 4 Mad , 111.

(x) Kishen Parshad v. Har Narain Singh (1911) 38 I. A., 45, 33
All, 272, Sheoshankar v. Jaddokunwar (1914) 41 I.A , 216, 36 AH,
383; V enkatanarayana v. Samara ju 119371 Mad., 880 F.B.; Honlal v.
Miinman Kunwar (1912) 34 All., 549 F.B., Ramkrishna v, Vinayak
(1911) 34 Bom., 354, Madhusudhan v. Bhagwan (1929) 53 Bom., 444;
Ramasarnayyan v. Virasami (1898) 21 Mad., 222.

(y) Ganpat Lai v. Bindbasini (1920) 47 I.A., 91, 47 Cal., 924;
Muthuraman Chetti v. Ettappaswami (1899) 22 Mad., 372.

(z) Kehri Singh v. Chunnilal (1911) 33 AIL, 436; Balki Maha-
patra v. Brojabasi (1912) 16 C.W.N., 1019; Balkisen Lai v. Choudhun
Tapesur (1912) 17 C.WN., 219, (1898) 21 Mad., 222 supra,
Palani v Rangay^a (1899) 22 Mad., 207, Lala Suraj Prasad
V. Golab Chand (1901) 28 CaL, 517, Raja Raghunandan v. Kumar
Ghananund (1931) 10 Pat., 124 dissenting from Bhawani Prasad v.
Kallu (1895) 17 All, 537 F.B.

(a) Trimbak v. Narayan (1884) 8 Bom., 481.

436

LiABiur^ Fon Bticrs.

[chap. IX,

Attatlunciit

prevents

hlllVl\Ulblni»

Section 13
the Civil
Procedure
Code.

Hindu son to pay his deceased father's debts could be enforced
in execution of the decree Acc or ding to the Madras and
Allahabad High Courts, such a decree could not be executed
against ancestral properly in the hands of the son even to
the extent of the father's interest in the propeity and the
only remedy of the creditor was to institute a fresh suit
against the son This view was based upon the ground that
as the joint estate became \ested in the son by the right of
sill vivor‘^hip, he was not the legal representative of
the deceased nor was the property assets in his hands (6).
On the other hand, the Bombay and Calcutta High Courts
held that there was no necessity for any separate suit and
that the son could be proceeded against in execution fc)
Where iheie is a decree upon a mortgage against the father
and he dies before the sale, the proceedings may be continued
against the sons (d).

Where the father died after atlachmenl ahd before sale,
the rule of ‘^ui vivorship did not defeat the execution proceed-
mgs, for the attachment m favom of the judgment creditor
coiistilulcd foi the purposes of Hindu law. a valid chaige
which could not he defeated by the death of the father, the
judgment debtor, hefoie the actual sale [e]

In Sliiviam \ bakhaiam, it was held that iheic was
no substantial difference between the position of legal repie
senlatives added as parties to the suit hefoie dcciee and legal
representalnes brought in after decree (/). The Indian
Legislature has adopted the view of the Bombay and Calcutta
High Courts in section 53 of the Code of Civil J^iocedurc,
1908, which pro\idcs foi cases where tlic father (judgment
debtor) dies before the decree has been fully satisfied and
where the father dies after suit and before a decree is

ib) Pvnaswanii v Svitharamu (J90t) 27 Mad. 213, 218 F 0 ,
Lachminarain v Kunji Lai (1894) 16 All, 449, Narsmgh v. Lalji
(1901) 23 All, 206

(f ) Urned v Goman (1896) 20 Bom., 385, Shivrani v Sahhaiani
(1909) 33 Bom, 39, Amar Chandra v. Sebak Chand (1907) 34 Cal,
642 F.B. See Hanmant v Ganesh (1919) 43 Bom, 612, Devidas v
Jada Ram (1934) 15 Lah , 50, Sri Chandra v. Mt Shy am Kumari
(1932) 11 Pat, 445.

(d) Chander Pershad v Sham Koer (1906) 33 Cal, 676, Vma-
maheswara v. Singaperumal (1885) 8 Mad., 376; Inder Pal v The
Imperial Bank (1915) 37 All., 214, Hira Lai v Parmeshar (1899)
21 All., 356; Ramknshna v. Vinayak (1911) 34 Bom, 354

(e) Suraj Bunsi v. Shea Prasad (1879) 6 I.A., 88, 105, sec inlra
^ 344

(/) (1909) 33 Bom., 39.

PARAS. 338-339.] LIABILITY ON PARTITION.

437

obtained. S. 53 runs as follows: — ^“For the purposes of
section 50 and section 52, property in the hands of a son
or other descendant which is liable under Hindu law for the
payment of the debt of a deceased ancestor, in respect of which
a decree has been passed, shall be deemed to be property
of the deceased which has come to the hands of the son or
other descendant as his legal representative” (g) .

^ 339. A father’s debts are a first charge upon the
inheritance and must be paid in full before there can be any
surplus for division (A). As between the parceners them-
selves the burden of the debts is to be shared in the same
proportion as the benefit of the inheritance (i) .

Where the family estate is divided, it is necessary to take
account of both the assets and the debts for which the
undivided estate is liable and the debts of the father incurred
prior to paititipn, unless they are immoral or illegal, are a
liability of the joint estate for which provision is required to
be made on partition and this rule would apply whether the
partition is between the father and the sons or, after his death,
between the sons themselves. And where a suit for partition
is brought, it is right that the Court should make provision
for the discharge of the father’s debts incurred prior to the
suit out of the joint estate of the father and the sons before
directing partition of the estate by metes and bounds (;).
Wheie no provision is made for the discharge of debts at a
partition out of court or in the decree for partition, the rule
as stated in the text of Vishnu will apply: “But after partition,

ig) S. 53 of the C P. Code 1908, applies to mortgage decrees as
well as to money deciees Meyyappa v. Meyyappa (1924) 46 M.L.J.,
471; Ganesh v Naruyan (1931) 55 Bom., 709, (claim for injunction) fol-
lowing Sakarlal v Hai Pariah (1902) 26 Bom, 283, and Knshnabai v.
Sawlntam (1927) 51 Bom, 37 ‘Property’ in S. 53 means and includes
proprietary interest m such properly, Chhotey Lai v. Ganpat Rai (1935)
57 All , 176 F B ‘Debt’ in S 53 includes a prepartition debt. Venkata-
narayana v. Somaraju 1 1937 1 Mad., 880 F.B. S. 53 will not avail against
a coparcener who is not a son. Lakshmanan Chetty v. Muthu Chelhah
(1935) 68 MLJ, 104, Subbaratnam v. Gunavanth Lai (1937) 1
M.LJ., 224, Raja of Ramnad v. Chidambaram (1938) 42 C.W.N., 565,
P.C., (1938) 1 M.LJ, 597, 609.

(A) Narada, XIII, 32; Dayabhaga, I, 47, 48; Vyav. Mayukha, IV,
6, Tarachand v. Reeb Ram (1866) 3 M.H.C.R., 177, 181.

(i) Katyayana, 1 Dig., 201; Narada, I, §2; Vishnu, Dig., I, 200;
D K.S., vii, §§26-28 , 2 Sira. H.L , 283. The case of Doorga Per shad
V. Kesho Pershad (1882) 9 I, A., 27, 8 Cal., 656, which seems to
contradict the proposition in the text, must depend on the special
circumstances of the case

(/) Sat Narain v Das (1936) 63 I.A., ^4, 17 Lah., 644 approving
Venkureddi v Venknreddi (1927) 50 Mad., 535 F.B.; Bawan Das v.
0, M Chiene (1922) 14 All., 316,

Mode of
adjustment

Partition.

Provision
for debts.

Liability
if no

provision

made.

438

PRE-PARTITION DEBTS.

[chap. IX.

Pip partition
debts.

Creditor's
decree after
partition.

they shall severally pay according to their shares of inherit-
ance” (A:). It IS now settled that the father’s power to sell
or mortgage for the discharge of his debts exists only so long
as the joint family remains undivided (/). But it has
nevertheless been held by all the courts that the sons are
liable for the debts, incuried by a fathei prior to partition,
not being illegal or immoial, even after a partition between
him and his sons (m).

^ .‘UO Where the < redilor obtains his decree against the
father alone after paitition for a debt incurred by the father
before partition, the liability of the sons to pay the debt out
of their respective shaies can only be enforced by a sepaiate
suit, for the sons were neither lepresented by the father in
the suit up to the passing of the deciee nor could it be said
that the decree as such bound the son’s share in) This seems
quite consistent with principle A bull Benclj of the Madras
High Court has however held that a decree for mesne profits
made after partition in a suit instituted before partition against
the fathei who was also the managing member could be
executed against the shares allotted to the sons at the
partition The giound of decision appears to have been that
the father represents the sons in a suit instituted before
partition up to the dale of decieelo). But obviously the
father cannot represent the sons alter partition and the deci-
sion cannot be supported (/>).

(h) Vishnu, VI, 36

(/) Sat Narain v Das (1936) 63 I A, 384, 17 Lab, 644

ini) Jagannatha v Visvesam (J924) 47 Mad. 621, Subrahmanya
V Sobapathi (1928) SI Mad, 361 FB , In re lialusami (1928) T)!
Mad, 417 FB , Annabhat v Shivappa (1928) 52 Bom, 376, Jatvahar
Singh V Pardnman Singh (1933) 34 Lah., 399, Pannalal v Rama Nond
AIR 1936 Lab, 193, AtuI Krishna Roy v. Lala Nandanji (1935)
14 Pat, 732 F B., overruling Ram Ghiilam v Nandkishore (1925) 4
Pat., 469, Bankey Lai v Diirga Prasad (1931) 53 All, 868 FB,
overruling Gaya v MurUdhar (1927) 50 All , 137, Ram Saran v.
Bhagwan (1929) 52 All, 71 and Ajodhia v Data Ram 1931

ALJ, 104, Tribeni Prasad v. Bishambar Nath A I.R. 1934 All, 212,
Raghunandan v Mali Ram AIR. 1929 Oudh., 406 F B., 6 Luck , 497
FB., Kiilada Prasad v Hanpada (1913) 40 Lai, 407, Lalta Prasad v
Gangadhar (1933) 55 All., 283.

(/i) Krishnaswami v Ramaswami (1899) 22 Mad, 519, Lakshman
Chettiar v Govindarajuln (1898) 8 MLT, 349, Kuppan Chetty v
Masagoundan [19371 Mad, 1004, Veerayya v Venkata AIR. 1936
Mad, 887, Govindram v Natta Lai AIR 1937 Nag, 45

(o) Venkatanarayana v Somarajii [19.371 Mad, 880 F B.

(p) The partition was pending the suit for possession and mesne
profits and so far as award of possession was concerned, it will be
governed by Sec. 52 of the T.P. Act But a decree for mesne profits
is only a decree for money.

PARA. 340.]

LIABILITY FOR DEBTS.

439

But where the decree was obtained by the creditor against
the father alone before a partition with his sons, it has been
held by the Madras and Nagpur High Courts that the creditor
is bound to bring a fresh suit against the sons to make their
shares liable for the decree debt and that he cannot proceed
by way of execution of the decree (^). The ground of decision
was stated thus: “the principle upon which the son cannot
object to ancestral property being seized in execution for an
unsecured personal debt of the father is that the father under
the Hindu law is entitled to sell on account of such debt the
whole of the ancestral estate” (r). And as the power of the
father comes to an end the moment the father and the sons are
separated in interest, the decree obtained before partition
cannot support an attachment of the son’s share. A contrary
view has been taken by the Allahabad High Court in Kishan
Sarup V. Brij Raj Singh as well on the ground that the
liability of the joint estate was not destroyed by the partition
as on the ground that the father represented the son in the
Cl editor’s suit in which the decree was made (5). This view
was approved by a Full Bench of the Patna High Court fr)
and is followed in Lahore (u) and in Oudh (v).

The question was discussed by a Full Bench of the Madras
High Court and doubts as to the correctness of the earlier
decisions in Madras to the contrary were expressed (m;). The
view that the right to attach and sell in execution of a money
decree against the father can only be rested on the father’s
power to sell for the discharge of his antecedent debts (x)

(q) (1899) 22 Mad, 519 suprUy Kameswaramma v. Vfnkatasubba
(1915) 38 Ma<l , 1120, Hapirajii v Sn Ramulii A.T.R, 1934 Mad., 662;
Jainarayan v Sonaji AIR 1938 Nag., 24, Tirumalaimuthu v Subrah-
manya (1937) 1 M.LJ, 243, see Stibrahmanya v. Sabapati (1928)
51 Mad., 361 F B.

(r) (1899) 22 Mad, 519, 521 supra,

(s) (1929) 51 All, 932. The explanation of this case in

(1937) 1 M.L.J., 243, 247 supra, that the person who wanted to get his
property exempted from the attachment was a party to the money
decree does not appear to he correct See also the observations of
the Judges m 11937] Mad., 880 F.B. supra,

(t) Atulknshna Roy v Lain Nandanp (1935) 14 Pat., 732 F.B.,
774; Bankey Lai v. Durga Prasad (1931) 53 AH, 868 FB.

(u) Jawahirsingh v Pardumansingh (1933) 14 Lah , 399; Nand
Kishore v. Madan Lai A.I R. 1936 Lah., 64.

(r) Raghunandan Prasad v. Motisingh A.I.R. 1929 Oudh., 406
F.B., 6 Luck, 497 F.B., Piittu Lai v. Parbati A.I.R. 1935 Oudh., 443.

(tu) V enkatanarayana v. Somaraju [19373 Mad., 880 F.B.

(x) Krishnaswami v. Ramaswami (1899) 22 Mad., 519, 521;

Kameswaramma v. Venkatasubba (1915) 38 Mad., 112(); Tirumala-
muthu V. Subrahmanya (1937) 1 M.L.J., 243, 247,

Before

partition.

440

LIABILITY FOR DEBTS.

[chap. IX,

is not supported by the case of Girdharee Lall v. Kantoo LalL
In that case, it was based simply on the son’s obligation to
pay out of ancestral property his father’s debts: “If his
lather had died, and had left him as his heir
and the property had come into his hands, could
he have said that because this was ancestial property which
descended to his falhei fiom his grandfather, it was not liable
at all to pay his father’s debts'^” (yj. So also the principle
undci lying the execution of a money decree against the
father was staled in Sat Narain v. Behan Lai: “When the
decre(‘ which was executed was made in a suit to which the
‘^ons were not paities and the property sold was joint property
of the father and the son, the sale was good on the principle
of llmdu law that it is the pious duty of a Hindu son to pay
his falhei’s debts unless it is shown that the debt in resped of
which the decree was made was (ontiaded by the father to the
knowledge o( the lendei foi the purposes of Miimoialilv” («).
As stated by Lord Thankeiton in the most leeent case,
the father s liability is a liabilil} of the joint estate (a)
and no priiuiple of Hindu law would seem to reijuire the
(leditoi to bring a separate suit against the sons after partition
when a decree for a debt made against the father before he
became divided with his sons is, as a decree, binding upon
them so far as then shares in the jo'nt estate are concerned.
All that the sons can claim is that not being parties to the
suit, they ought not to be baried fiom trying the nature of
lh(‘ debt in execution pi(K eedings ( /? ) Subject to it, the
decree against the fathei befoie partition inaki^s it a liabilil\
of the joint esidle enfoic cable in execution against all who
were eonstiuctively paities to the suit and decree On the
Mew that the decree i^ to be treated as one against the sons
also. It will continue to be one against them, notw ithstandin j;
the subsecjuent jiaitition and theie may be no diflTiculh
cremated b\ 60 ( 1 ) of the L P Code <c) It is by no means
clear that a separate suit will remove any legal irnpedimeiu,
for, in the suit instituted after paitition, no peisonal decnee

(y) (1874) 1 I \ , 321, 330, 3^1, see also the propositions stated
in S/irr/y Hiinsi's (1870) 6 I A, 88. lOS, 1(36, I\lanon}i\ rase (1886)
13 TA, 1, 13 (.al , 21, Hanhey Lai v. Duiga Praual (1911) 51 All,
868, 876 FB , l.alta Prasad v Gajadhai (1933) 55 All, 281, 291, 295

( 2 ) (1924) 52 1 A, 22, 30, 6 Lah , 1, 11

(a) Satnarain v /A/s (1936) 63 I. A , 384, 17 Lah , 644.

(b) Periasami v Seetharama (1904) 27 Mad, 243 FB., Thavasi
muthu V Thavasimuthu Nadar AIR 1931 Mad , 824.

(c ) (1924) 52 1 A , 22, 30, 6 I ah , 1 supra, see Parigudaya v
l'ihandi\a (1938) 2 MI I, .33, .39 , Sur\auaia}ana \ I ntvanatliafn
(19 36) 71 M T 1 , 518,

PARAS. 340 - 342 .] ASSETS ARE PURSUED.

441

can be obtained against the sons nor can they be treated as
legal representatives of the father while he is alive (d).

§ 341. Debts contiacted by a father after partition with
his sons will not be binding upon them or payable by them
out of their shares. For, where a father has separated from
his sons, the whole of his pioperty will descend at his death
to an after-born son Therefore all debts contracted by him
subsequent to the partition will be payable by that son. But
Jagannatha is of opinion that even in such a case, if the
after-born son has not property sufficient to pay the debts,
they should be discharged by the separated sons (e). Whether
this would have been the case under the older law or not,
when the possession of assets was not necessaiy in order to
render the sons liable, it is clear now on principle that sons
are not liable for their fathei’s debts incurred by him aftei
they are divided from him, except to the extent to which the*
sliare allotted *lo the fathei on partition comes to them on
Ins death.

S 342. Secondly, the obligation to pay the debts of the
jierson whose estate a man has taken is expressly declared. It
does not rest, as in the case of sons, upon any duty to relieve
the deceased at any cost, but upon the broad equity that he
wlio takes the benefit should lake the burden also (/) . It is
evident that this obligation attached whether the properly
devolved upon an heir by operation of law, or whether it
was taken by him voluntarily as an executor de son tort, foi
the liability is said to arise equally whether a man lakes
possession of the e&late of another or only of his wife. As
Narada says* ‘"He who takes the wife of a poor
and soilless dead man becomes liable for his debts, for the

id) “This staliiloiy fiction (contained m S. 53 of the C. P. Code)
however only applies to the case of a deceased father and we should
not be justified in extending it to a case where the father is still living
or in infening, as has been suggested, that, as the decree could, under
the section, he executed against the property in (piestion if the falhei
was dead, it must a fortiori be executable against the same property
where the fathei is alive”: Kameswaramma v. V enkatasubba Ron
(1915) 38 Mad, 1120, 1124

(e) Brih, Dig, I, 195, 196, D. K S., V, 16-18.

(/) “He who has received the estate or the wife of the deceased
should be made to pay his debts, or failing either, the son who has
not received an inheritance In the case of a sonless deceased, those
who take the heritage should be made to pay”. Yajn., II, 51, Bnh.,
XI, 52; Katyayana, Dig., I, 190, 226. “Of the successor to the estate,
the guardian of the widow, or the son, he who takes the estate
becomes liable for the debts.” Narada, I, 23; Oaiit , Xll, 40;
Kanmuddin v. Gobind Knshna (1909) 36 I, A., 138, 147 ; 31 All,, 497,
506,

Debts

contraelcd

after

partition.

Obligation
aiising fiom
possession
of assets.

442

LIABILITY FOR DEBTS.

[chap. IX,

Exprutor
c/p son tort.

wife is considered as the dead man’s property” (g) . Even
the widow is not bound to pay her husband’s debts, unless
she is his heir, or has promised to pay them, or has been a
joint contractor with him (A). And where the wife paid the
debts of the husband during his life-time, there is no obliga-
tion on his estate to pay such moneys to her, and an alienation
to repay such amount will not be upheld (i).

“Assets are to be pursued into whatever hands.
See Narada, cited by Jagannatha, 1 Dig., 272. And innumer-
able other authorities may be cited were it requisite in so
plain a case”. This is the remark of Mr. Colebrooke,
approving of a Madras pundit’s fiitwah, that where uncle and
nephew were undivided members, and the nephew bon owed
money and died, leaving his property in the hands of the
uncle’s widow, she might be sued for the debt (y). So in
Hombdv. a suit was maintained on an account current with a
deceased debtor against his widow and three other persons,
strangeis by family, on the giound that tbev had taken po^^-
session of his property, but they were held liable only to the
extent to which they had bei ome possessed of the property (A) .
Similaily in Madras, where a suit was brought against the
representatives of two deceased co-debtors to lecover a debt
incurred for family purposes, it was decided that the son-in-law
of one of the deceased co-debtors and his bi others were
properly joined as defendants, on the ground that they, in
collusion with the widow of the deceased, had, as volunteers,
intermeddled with, and substantially possessed themselves of
the whole property of the family of the deceased co-debtor (Z) .
In each of these cases the person in possession of the properly
held it without any title. Where there is an executor de son
toit, a creditor may sue to recover his debt and is not con-
fined to an administration action The rule of English law.

( 5 ') Narada, I, ^§21-24

ih) Narada, I, 16, 17, Yajn , II, 46, 49, Vishnu, VI, 31, Kalyayana,

Dig: , 1, 216

(t) l/immat Bahadur v Bhaivarn Kunwar (1908) 30 All., 3')2,
affirmed by the PC in (1911) 33 All, 342.

(/) 2 Stra.HL, 282

(A) Knpurchiind v Dadabhoy, Morns Pt* Ih 126. So, in Calcutta,
where the half brother of the deceased was sued jointly with his sons
for a debt, the Court held that he could not be liable as heir, whicli
he manifestly was not, but that he would have been liable if it had
been shown that he had possessed himself of any of the property of
the deceased, Rampertab v Gopeekisen, Sev. 101.

(/) Magaluri v Narayana (1881) 3 Mad, 3S9; Kanakamma v
V enkataratnam (1884) 7 Mad., 586, Khittsh Chundra v, Radhika
Mohun (1908) 35 Cal, 276.

PARAS. 342 - 343 .] DEBTS NOT A CHARGE.

443

as to which there has been difference of opinion, that no
liability as executor de son tort can arise when there is
another personal representative, does not apply m India (m).
The definition of 4egal representative’ in section 2 (7) of the
Civil Procedure Code includes any person who intermeddles
with the estate of the deceased.

§ 343. The unpaid debts of the deceased, when they are
unsecured, are neither a charge upon the estate nor is the heir,
in the first instance, personally liable for them. The heir is
only liable to the extent of the assets he has inherited from
the person whose debts he is called upon to pay. But as
soon as the property is inherited, a liability pro tanto arises
and is not removed by the subsequent loss or destruction of
the property and still less, of course, by the fact that the
heir has not chosen to possess himself of it, or has alienated
it after the death (ai). “The property of a deceased Hindu is
not so hypothecated for his debt as to prevent his heir from
disposing of it to a third party, or to allow a creditor to

follow it, and take it out of the hands of a third party, who

has purchased in good faith and for valuable consideration.
The creditor may hold the heir personally liable for the debt,
if he have alienated the property, but he cannot follow the
pioperty” (o). The right of a creditor to follow the assets

in the hands of an alienee or legatee from the

heir or legal representative can only be enforced by a
separate suit against him and not by merely levying execution
against the assets in his hands under a judgment against the
legal representative ip). But where a judgment is obtained
against a debtor, it can be executed against a stranger who
has intermeddled with the estate, for he is a legal representa-
tive within the meaning of sections 50 and 52 of the Civil

(m) Narayanasami v. Esa Abbayi Sait (1905 ) 28 Mad., 351;
DhanpiU Singh v. Moheshnath (1920) 24 C.W.N., 752; Parthasarathy
Appa Rao v. Venkatadn Appa Rao (1923) 46 Mad., 190 F.B., (per
Schwabe C. J. at 205, 206, per Kiimaraswami Sastn J. at 233-234, on
appeal (1925) 52 1 A., 214.

(n) This passage is quoted with approval in Anant Govind v.
Tukaram (1929) 53 Bom., 463, 468, Kasi v. Buchireddi Mad Dec.,
1860 (78) ; Unnapoorna v. Ganga 2 W.R., 2%, Keval Bhagwan v.
Ganpati (1884) 8 Bom, 220, Girdhar Lai v. Bai Shiv (1884) 8 Bom.,
309.

(o) Unnopoorna v. Gunga 2 W.R , 296; Jamiyatram v. Parbhudos
9 Bom. H.C , 116; Lakshman v. Sarasvatibai (1875) 12 Bom. H.C , 78.
V eerasokkaraju v. Papiah (1903 ) 26 Mad., 792; Haji Saboo v. Ally Md
(1906) 30 Bom., 270. As to what circumstances will negative good
faith, see Greender Chunder Ghoon v. Mackintosh (1879) 4 Cal., 897.
As to a legatee, see Ram Oottum v. Oomesh 21 W.R., 155.

(p) Jay Chandra v, Satish Chundra (1931) 58 Ca)., 170,

Debts are
not a charge
upon the
estate.

444

LIABILITY FOR DEBTS.

[chap. IX,

Liability of
coparcener
taking by
«urvivorship.

Effect of
attachment.

Procedure Code (q) , A voluntary transfer of property by
way of gift, if made bona fide, and not with the intention of
defrauding creditors, is valid against creditors (r). So too
would be a devise. Where a gift consists of the donor’s
whole property, the donee is personally liable for all the
debts due by and the liabilities of the donor at the time
of the gift to the extent of the property comprised therein ( 5 ) .

? 314 Another question arises, how far the liability to
pay debts out of assets prevails against the right of survivoi-
ship, in cases where the debtor does not stand in the relation
of paternal ancestor to the heir In this case the moral and
religious obligation has vanished, and it is a mere conflict of
two legal rights. It is the settled law of the Mitakshaia as it
is administered in all the provinces, except in the provinces
of Madras and Bombay and the Central Provinces including
Berar, that an undivided coparcener cannot, without the
consent of his coparceners, sell or mortgage his undivided
shate in the joint estate it) » But in all the provinces, since the
decision of the Privy Council in Deen DyaVs case in 1877, it is
well-established that the undivided interest of a coparcener is
liable to attachment and sale in exec ution of a decree against
him for his &c*parate or personal debt i 1 / ) The undivided
interest canncot howevei be attached aftei his death, though
when an attachment is made during his lifetime, it can
be «old after his death (t ) In c*ase the creditoi effects m^

((/) The decision m Chatha Kehin v Goiinder (1891') 17 Mad,
186 IS no longer good law

(r) Gnanabhai \ Snnavasa (1868) 1 Mad HT , 81, Haibtshrn
(hand v Asmaida Koer (1884) UFA, 164, 6 All, 560

(6) Section 128 of the Transfer of Property Act now applies to
Hindus S 53 T P Act applies to immovable propel ly. As to
movable property, see Abdul Hye v Mir Mohammad (1881) 11 I A ,
10, 10 Cal, 616, All Foon v Hoehai Pat (1932) 9 Rang, 614

(r) Deendyal v Jitgdeepnaratn (1877) 4 I A, 247, 252, 3 Cal, 198,
Surai Bunsi v Shea Prasad (1879) 6 I A , 88, 101, 102, 109, 5 (al,
148 Sadabartprasad v Foo/bash 3 BLR FB, 34, 37, Madho Prasad
V. Mehrbansingh (1891) 17 I A, 194, 18 Cal, 157, Lakshman Dada
Naik V Ramachandra (1880) 7 I A, 181, 5 Bom, 48, Balgovind Das
V Narainlal (1893) 20 I A 116, 15 All, 336, see as to Berar, Syed
Knsam v Jorawar Singh (1922) 49 LA 358, 50 Cal., 84, Ramkisan
V. Md Abdul Sattar (1928) 32 CWN, 1149, P.C , Bhojraj v. Nathu-
ram (1917) 37 I C , 498, 12 N L R , 161 , Amardayal v. Harprasad (1920)
5 PLJ., 605, Ralla Ram v Atma Ram (1933) 14 Lah , 584, Udararn
v. Ranu (1875) 11 BHC, 76

(u) (1877) 4 I A, 247, 3 Cal 198 supra, (1879) 6 LA., 88, 5
Cal , 148 supra

(t;) (1879) 6 I A , 88 109 supra, Bithaldas v Nandhishore (1901)
23 All, 106, Lachmi Norain v Kiinji Lai (1894) 16 All, 449, Fakirs
(hand v Santlal (1926 ) 48 All. 4, compare Sheik Karoo v Raniesmira
Ran (1921) 6 Pat, L.J , 451, ^^c^e ante § 338,

PARAS. 344-345.J ATTACHMENT bEFORE COPARCENER^S DEATH.

445

attachment before the death of his debtoi, he is altogether
without a remedy so far as the debtor’s interest in coparcenary
property is concerned. The reason for this distinction is
that in the one case, the execution pioceedings had, before
the coparcener’s death, gone so far as to constitute in favour
of the decree-holder a valid charge upon the joint estate to
the extent of the undivided interest of the deceased which
could not be defeated by his death (m;). This is an equity in
favour of the decree-holder which the Courts have recognised.
But where no attachment has been made during the judgment-
debtor’s lifetime, on his death, his coparceners take the whole
estate by survivorship and are not liable for the personal debts
and obligations of their deceased coparcener. An equity
which might have been enforced against the judgment-debtor’s
interest, while it existed, cannot affect that interest when it
has passed to a surviving coparcener except by repealing the
rule of the Mitakshara law (^). The result is that if the
deceased debtor is an ordinary coparcener, who has left neither
separate nor self-acquired property, the creditor, who has not
allachcd his share befoie his death, is absolutely without a
remedy.

S ‘)15 When the Judicial Committee in Suiaj Butisi Koer
\. Slieo Biasad [y) spoke of an attachment as creating a
chaige in favour ot the decree-holder, they were ceitainly using
the term in the sense of some legal fetter or equity preventing
the operation of the lulc of survivorship, whether the attach-
ment would confer title or create any interest in the pioperty
or not.

The Mew that has prevailed in some cases that an attachment
meielv places the property in cuslodia legis, so as to prevent
alienation by the defendant, but does not create anything in
the nature of a lien oi a charge fz) cannot be regarded as
fiee from doubt. Strong observations have been made by the
Judicial Committee in Atlanta Padmanabhastvami v. Official

{tv) (1879) 6 I.A., 88, 5 Cal., 148 bupra,

(a) Madho Pershad v. Mehrbansingh (1890) 17 I.A., 194, 18
Cal., 157, Balgovind Das v. Naramlal (1893) 20 I.A., 116, 15 All.,
336. See also Harischander v. Mt, Nanki A.I.R. 1937 Lah., 328.

(y) (1879) 6 I.A.. 88, 5 Cal, 148 supra.

(z) Motilal V. Karrahudin (1898) 24 I.A., 170, 25 Cal., 179;
Knstnasawmy v. Official Assignee of Madras (1903) 26 Mad., 673;
Sankaralinga Reddy v. Kandasawmy Thevan (1907) 30 Mad., 413;
Zemindar of Karvetnagar v. Trustee of Tirumalai, Tirupati, etc.,
Dcvastanains (1909) 32 Mad., 429.

LlAblLlTV Foh DEBTS.

[chap. IX,

li6

Receiver, Secunderabad (a) where it is observed that in
Knstnasuaniy v. Official Assignee of Madras (6), the Madras
High Court, Ignoring the opinion of the Judicial Committee
in Suraj Bunsis case, appears to have taken a dictum in Moti-
lal V. Kar rab-ul’din (c) from its context and used it for a
puipose which it did not have in view.

Allddiinent

before

judgment.

Where the attachment however is one beloie judg-
ment, until a decree is passed, it cannot operate to render
the attached proper tv available lor sale in execution (d).
So that if the defendant dies before decree, the creditor is
without a remedy, notwithstanding the attachment, for in such
a case the right of survivorship takes effect befoie the
attachment can become effectual for execution (c) Wheic
there has been an attachment before judgment, and tlic
defendant dies after decree, but before proceedings in execu-
tion aie taken, there has been a difference of opinion as to
whether the rights of the surviving c oparcenc'rs, or those of
the attaching creditor should prevail. The Bombay and the
Patna fligh Courts have decided that the light of survivoiship
prevails as against the attachment befoie judgment (/). The
Madras High Court has held in favoui of the attaching
creditor (g) While an attachment before judgment has not
for all purposes the same effect as an attachment after decree,
the effect of Order 38. Rule JL of the Civil Pioceduie Code,
1908, is to make the property attached before judgment,
proper tv attached in execution ot a decree, at least for lh»'
purpose of subjecting the coparcener's right of survivorship
to the rights of the creditoi under the attachment (//).

(a) (193J) 60 I.A., 167, 174, 175, 56 Mad., 405, reversing (1931) 51
Mad., 727.

(d) (1902) 26 Mad., 673.

(c) U898) 24 I.A., 170, 23 Cal, 179.

({/) Or. 38, Rules 5 to 11, C.P.C.

(e) Ra/nanayya v Rangappayya (1894) 17 Mad, 114

(/) Subrao Mangesh v. Mahadevi (1914) 38 Bom., 105, Sunder
Lal V. Raghunandan (1924) 3 Pat , 250

(g) Muttuswami Chetty v. Chinnammal (1914) 26 M.L.J., 517,
Sankaralinga v. Official Receiver (1925) 49 M.L.J., 616 dissenting from
(1914) 38 Bom., 105 supra,

\,h) See Meyyappa v. Chidambaram (1924) 47 Mad, 4P3 F.B.;
Arunachala v. Penaswam (1921) 44 Mad., 902 F.B.

l»AHAs. 345 - 347 .] DEBTS Incurred by Manager.

44 ?

Of course where a coparcener m Madras or Bombay con-
tracts a mortgage debt on the security of his undivided
froparcenary interest, his death will not affect the right of the
mortgagee. In provinces where the coparcener cannot mort-
gage his undivided interest, his debt can stand only on the
footing of a simple money claim. The purchaser at an
execution sale stands in the shoes of the judgment debtor and
is entitled to work out his rights by means of a partition {i),

§ 346. The onus of proving that assets have come to Onus of
the hands of the heir is in the first instance on the creditor.

But It would be enough if he gave such evidence as would ®^^®***
afford reasonable grounds for an inference that assets had,
or ought to have, come to the hands of the heir. When once
it is admitted or proved that the heir had come into possession
of assets belonging to the estate of the deceased, it is for
him to satisfy the court that the amount of the assets is not
suflicient to satisfy the plaintiff’s claim, or that they were of
such a nature that the plaintiff was not entitled to be satisfied
out of them, or that they have been duly administeied and
disposed of in satisfaction of other claims (/) . The mere
fact of a succession certificate having been taken out was
held not to be even prima facie evidence of the possession
of assets (A;).

§ 347. The third giound of liability is that of Ca‘5p*<of
agency, express or implied, or of the authority to act on ®scncy.
behalf of another conferred by Hindu law. Mere relationship,
however close, creates no obligation. Parents are not bound
to pay the debts of their son, nor a son the debt of his

(i) Deendyal v. Jugdeep Narain (1877) 4 I.A., 247, 251, 252,
3 Cal., 198; Suraj Bansi v. iyheo Prasad (1879) 6 I.A., 88, 109, 5 Cal.,
148, this subject will be fully discRssed in the next chapter.
Post §§384-394.

(y) Kottala v Shangara (1866) 3 M.H.C.R., 161; Joogal Kishore
V. Kalee Churn (1876) 25 W.R., 224, Magalun Garudiah v. Narayana
(1881) 3 Mad., 359, Knshnayya v. Chinnayya (1884) 7 Mad., 597,
Veera Sokkaraju v. Papiah (1903) 26 Mad, 792; Ranchod Das v.
Krishna Dass (1911) 12 I.C , 253, Raja of Kalahasti v. Prayogdossjee
(1916) 35 I.C, 224, Angavalathammal v. Janaki A.I.R. 1924 Mad.,
466; Hazura Singh v. Kishan Singh A.I.R. 1933 Lab., 447; Mohammed
Sharif V. Mehraj Din A.I.R. 1934 Lab., 106; Afa Aye v. V, M. R, P.
Chettyar Firm A.I.R. 1933 Rang., 309; Lai Behan v. Bindesan Misra
A.I.R. 1934 All., 249, Sumeshar Bind v. Baldeo Sahu A.I.R. 1935 AIL,
390; Tamil Sana v. Nand Kishore (1927) 49 All., 645; Daw Toke v.
Maung Ba Han (1927) 5 Rang., 44. A decree cannot be executed
against a person who was not made a party either to the suit or execu-
tion proceedings. Gangaraju v. Somanna A.I.R. 1927 Mad., 197;
Rathnammal v. Sundaram A.I.R. 1933 Mad., 508; but see Mt, Karam
Kaur V. Matwal (1933) 14 Lah., 696.

(A) Kottala v. Shangara (1866) 3 M.H.CLR., 161.

LUlilLITV I’OU 1)1 BTS.

[chap, lx,

iiJi

inothoi ( / ) A husband is not bound to pay the debts of
his wife, nor the wife the debts of her husband {ni) Still
less, of course, can any member of a family be bound to
pav the debts of a divided member, coiiti acted aftei partition,
for such a state of things wholly negatives the idea of
agency (n). It would be different if he had become the
heir of the debtor, or taken possession of his assets. On the
other hand, all the members of the family, and therefore all
their properly, divided or undivided, will be liable for debts
which have been contracted on behalf of the family by one
who was authorised to contract them (o).

The most common case is that of debts tieated bv
Manager. the inaiidgei of the family. He is the at ( rediled In'ad

or representative of the family, and authorised to bind the
other members even when minors, for all proper and necessary
purposes, within the scope of his authoiity ip) The manag-
ing member is not an agent or partner of the otkei c oparceners,
nor is he a trustee for them (q) . As long as the family
remains undivided, his authority taimot be revoked or
controlled except with his own consent His authority to
incur expendituie and contiact loans and enter into tiansac-
tions is one which is determined by family necessity or family
benefit Within those limits, his discretion is unfettered. If
a decree is passed against him in respect of a liability piojierh
contracted for the necessities of the family, the binding
character of this decree upon the interests of the other
members depends, not upon their having or not having been
parlies to the suit, but upon the authority of the managei

(1) Nor IS the nephew hound to pay the debts of Ins uncle who
was the managing member of the family. Ram Ratan v. Lachman Das
(1908) 30 All., 460.

ini) Aajn., II, 46, Vishnu., VI, 31, 32, Narada , I, 16, 18, Brih ,
Dig, J, 218, Katyayana , Dig, I, 219, Mootoocomarappa v. Iluinoo
Mad. Dec of 1855, 183

(n) Narayana v Rayappa Mad Dec of 1860, 51

(o) This passage is riled with approval m Venkatanarayana v.
Soniaraju [1937J Mad, 880 F.B., Manu, Vlll, 166, Raghunandana, V,
33-36, “When the debtor is deacl, and the expense has been incMirred
for the benefit of the family, the debt must be repaid by his relations,
even though they be separated from him in interests,** Narada, I, 13
(S.B.E. Vol. XXXIII, p. 45).

(p) Ghanb-ullah v. Khalak Singh (1903) 30 LA., 165, 25 All., 407;
Ram Avtar v. Chowdhuri Narsingh (1906) 3 C.L.J., 12; V enkatanarayana
V. Somaraju [1937] Mad, 880 F.B., Sin Kant Lai v. Sidheswari (1937)
16 Pat., 441, 447. What are such necessary purposes will be ex
amined fully in the next chapter, §§ 361-365.

(q) Annamalai v. Miirugesa (1903) 30 T A., 220, 26 Mad , 544,
Pcrrazii v Subboroyudu (1921) 48 I A , 280, 44 Mad, 656, Vaikuntam
V. Avudiappa A.I.R. 1937 Mad., 127.

PARA. 347 .]

DEBTS INCURRED BY AGENTS.

449

to contract the liability (r). So if the manager has borrowed
money for family necessities upon his personal security, he
will have a right to contribution from the other members,
which will arise at the time when he expends the money for
their benefit (5).

But the liability of the family is not limited to con-
tracts made, or debts incurred, by the manager. Narada
says: “What has been spent for the household by a pupil,
apprentice, slave, woman, menial, or agent must be paid by
the head of the household.” The rule in Brihaspati is to the
same effect: “When a debt has been incurred for the benefit
of the household, by an uncle, bi other, son, wife, slave, pupil
or dependent, it must be paid by the head of the family” (^) .
Of course, this implies that the persons ref ei red to have acted
either with an express authority, or in circumstances of such
pressing necessity that an authority may be implied (u) ,
Narada says: “Oebts contracted by the wife never fall upon
the husband, unless they were contracted for necessaries at
a time of distress, for the household expenses have to be
defrayed by the man” iv), A fortiori the husband is liable
for any debts contracted by his wife m a business which he
has assigned to her to manage ( tc ) . And on the same principle
it has been stated “that persons carrying on a family business,
in the profits of which all the members of the family would

(r) The entire passage is cited with approval in Dwarka Nath v.
Bungshi Chundra (1905) 9 C.W.N., 879; Han Vithal v. Jairam Vithal
(1890) 14 Bom., 597, oveiruling Maruti Narayan v. Lilachand (1882)
6 Bom., 564, and Lakbhman Venhatesh v. Kashinath (1887) 11 Bom.,
703; Melamal v. Gon (1922) 3 Lah., 288; Sakharam v, Devji (1899)
23 Bom., 372, Baldeo \. Mobarak (1902) 29 Cal., 583; there is no
difference on this point between the Mitakshara and the Dayabhaga
law. As to debts contracted by an executor, see Debendra Nath v. Hem
Chandra (1904) 31 Cal, 253, Srish Chundra Nandi v. Sudhir Krishna
(1932) 59 Cal.. 216.

(s) Aghore Nath Mukhopadhya v. Grish Chunder (1893) 20 Cal., 18,
V ellayappa v. Ktishna (1917) 34 M.L.J., 32, 36; see Satrohan v. Bharath
Prasad A.I.R. 1931 All., 652; see Article 107 of the Limitation Act
which provides three years for a suit by the manager of an undivided
family for contribution in respect of a payment made by him on
account of the estate.

(t) Nar., I, 12; Brih., XI, 50; Mit., I, 1, 29, 30. Vishnu., VI, 34,
39; Manu, viii, §167, Yajnavalkya, Dig., I, 196; Katyayana, Dig., I,
219; 1 W. MacN., 286. See as to the liability of the heir for debts
bona fide incurred by executors acting under a will which was after-
wards set aside, or by an adopted son whose adoption was afterwards
held invalid, Famndro Deb v. Jugudishwari (1887) 14 Cal., 316.

(u) Mudit V. Ranglal (1902) 29 Cal., 797.

{v) Narada, I, 18.

iw) Yajn., II, 48; Brih, XI, 53; Vishnu. VI, 87; 2 W. MarN,
278, 281.

31

450

LIABILITY FOR DEBTS.

[chap. IX,

participate, must have authority to pledge the joint family
property and credit for the ordinary purposes of the business.
And, therefore, that debts honestly incurred in carrying on
such business must override the rights of all members of the
joint family in propeity acquired with funds derived from
the joint business” (r). This power, when exercised by an
agent, or personal representative of the manager, cannot,
however, exceed that which is vested in the principal. For
instance, when a family trading business has de\olved upon
a widow, her agent cannot exceed the limited powers of
dealing with the estate which are possessed by the widow (y).

.‘^18 Theie is no presumption that a debt contracted b\
iiono ene t. ^ manager is one for the benefit of the family and not for his
own private purposes The karta of a joint familv carrying
on a family business has implied authoiity to boriow money
for the purposes of the business, but for promissory notes exe-
cuted by him in his own name for money b&i lowed by him,
the other members of the family aie not liable unless it is shown
that the money was borrowed for the purpose of the
business iz)

A decree obtained against a managing niembei for a debt
binding on the family can be executed against the shares of
the other membeis, whether befoie or after division in
status (a) Similailv, a mortgage of family property by the
managers of a joint trading family to pay a debt due by

(x) Per Pontifex J, Johurra Bibee v Sreegopal (1876) 1 Cal, 475,
Sheo Pershad \ Saheb Lai (1893) 20 Cal, 453, Raghunathji Tarachand
\ Bank of Bombay (1911) 34 Bom , 72, Sanka Krishna Murthi v Bank
of Burma (1912) 35 Mad, 692, Bishambharnath v Sheo Narain (1907)
29 All, 166, Mahabir Prasad v Amla Prasad (1924) 46 All, 364 See
also Gurusivami Nadar v Gopalasami Odayar (1919) 42 Mad, 629

(y) Sham Sunder v. ichhan kumvar (1899) 25 I A, 183, 21 All.,
71

(z) Abdul Majid Khan v, Saraswati (1933) 61 lA, 90, Ganpal
Rai V Miinrii Lai (1912) 34 All , 135, Khazana Mai v Jagannath
(1923) 4 Lah , 200, Muthureddi v Chinnappa (1920) 39 M.L.J.,
486, Vithal v Shivappa (1923) 72 I C , 659, Girdhari Lai v. Kishen
Chand (1924) 5 Lah, 511, Dwarka Nath v Bungshi Chundra (1905)
9 C.W.N., 879, Chalamayya v Varadayya (1899) 22 Mad, 166, see
also cases in note (x) supra Krishna Ayyar v Pierce Leslie & Co
A.I.R. 1936 Mad , 64

{a) Daiilat Ram v. Mehr Chand (1888) 14 I A , 187, 15 Cal, 70;
Han Vithal v. Jairam Vithal (1890) 14 Bom., 597, which held that
Lakshman v. Kashinath {1887) 11 Bom., 700 and Maruti Narayan v. Lila
Chand (1882) 6 Bom , 564 were overruled by Daiilat Ram*s case MIA,
187 supra, Jankibai v Mahadev (1894) 18 Bom, 147, Bhana v
Chendhii (1897) 21 Bom., 616, Sakharam v. Devji (1899) 23 Bom.,
372, Sheo Pershad v Raj Kumar Lai (1893) 20 Cal, 453, Baldeo
Sonar v. Mobarak Ah Khan (1902) 29 Cal, 583; Dwarka Nath v.
Bungshi Chandra (1905) 9 C.W.N , 879 (no difference between the

PARAS. 348-349.] DEBTS UNDER PROMISSORY NOTES.

451

the firm binds all other members of the family and if the
property is sold under a decree obtained against the mort-
gagors alone, the sale cannot be set aside by the other
members, merely on the ground that they were not parties to
the suit (6). Of course, debts contracted or conveyances
executed by any individual member of a joint family, for
his own personal benefit, will not bind the interests of the
other members (c).

§ 349. Where the father borrows money on a promissory
note, the sons are liable for the debt to the extent of their
interests in the joint estate provided it is neither illegal nor
immoral So loo, where the managing member borrows
money on a promissory note for family purposes, his copai-
ceners are also liable to pay the debt out of their shares. No
doubt the ordinary rule as to the liability on a negotiable
instrument is as laid down in Sadusuk Janki Das v. Sir Kishan
Pershad: “No person is liable upon a hundi or a bill of
exchange unless his name appears upon the instrument in a
manner which, upon a fair interpretation of its terms, shows
that the name is the name of the person really liable” (d).
The other coparceners can be made liable only upon the debt
or the consideration and not upon the note itself. The
liability of the other members for the debt evidenced by the
note is a liability which is external to the obligation arising
on the making of the promissory note and while the liabilitv
of the maker is absolute, the liability of the other members
is limited to their interest in the estate and depends upon the
character of the debt (e) .

Sec. 27 of the Negotiable Instruments Act is only relevant
where a person is sought to be made liable as a party to the
promissory note or a bill of exchange, but it can have no
application to cases where the persons who are not parties to
the negotiable instrument are sought to be made liable for the

Mitakshara and Dayabhaga schools) ; Kunj Behan v. Kandh Prasad
(1907) 6 C.L.J., 362, Nunna Setti v. Chidaraboyina (1903) 26 Mad.,
214, 222; Subbanna v. Subbanna (1907) 30 Mad., 324; Royarappan
V. Koyotan (1918) 35 M.LJ., 51, Guru Din v. Rameshwar A.I.R. 1933
Oudh, 102; Suryanarayana v. Visvanathan (1936) 71 M.L.J., 518;
V enkatanarayana v. Somaraju [1937] Mad., 880 F.B.; Jai Kishen v.
Ramchand A.I.R. 1935 Lah., 1.

(5) Daulat Ram v. Mehr. Chand (1888) 14 I. A., 187, 15 Cal., 70.

(c) Venkatasami v. Kuppaiyan (1878) 1 Mad., 354 (F.B.) ;

Guruvappa v. Thimma (1887) 10 Mad., 316.

(d) (1919) 46 I.A., 33, 46 Cal., 663.

(c) Per Shephard J. m Krishna Ayyar v. Krishnaswami Ayyar
(1900) 23 Mad., 597, 605; Jiwan Dass v. Peoples* Bank A.I.R. 1937
Lah., 927.

Liability for
debts under
promissory
notes.

452

LIABILITY FOR DEBTb

[chap. IX.

debt or the consideration, in consequence of an obligation
cast upon them by their personal law in respect of such
debt (/). The Allahabad and Patna High Courts apparently
take the view that a joint Hindu family is a legal person
arcoidmg to Hindu law, lawfully repiesented by and acting
through the managing members thereof and that the othei
members are liable on the note itself (g) The Calcutta and
Bombay High Courts have held that the other members are
liable only on the debt or the consideration and not on the
note(/i) In a recent Full Bench case, the Madras High
Court obseived that the distinction between the suit on the
delil and one on the note is merely a verbal distinction and
not one of substance (r) In more recent cases, the Madras
High Court has held, upon a leview of all the authoiities,
that the other niembc'rs can be made liable onlv on the
( onsideration and not on the note ( /)

In the case of Abdul Majid Khan v Saiasivatibai, the action
was upon two promissory notes executed by the karta of a
joint family and was bi ought after his death against the
surviving members of his family The Judicial Committee
observed that if it was necessary for the propei conduct of
the joint family business, that money should be borrowed
from time to time on promissoiy notes, it would be within
the authority of the deceased as kaita to borrow money in
his own name foi the puipose of the family business (A: I

(f) Per Subramania A>\ar J in fl900) 2^ Mad. S97, 606 siipia

( g) Knshnanand v Rajaram (1922) 44 All, 393, Raghunuth \

Narain (1923) 45 All , 414. Sirihant Lul v Sulheshicari Piasad

(1937) 16 Pat, 441, Tihnmrhand \ Siidarsan AIR 1933 Pat. 263,
see also Bhaguansingh & Co \ Rahshi Ram AIR 1933 Lah , 494

(h) Han Mohan Chose v Sourendra AIR. 1925 Cal, 1153, 41

CLJ, 535, Ramgopal Chose v Dhirendra Nathsen (1927) 54 Cal,
380; Indu Bala v. Lakshminarayan AIR 1935 Cal, 102, Vithalrao v
Vithalrao (1923) 25 Bom L R , 151, AIR 1923 Bom, 244,

Manchersha v Govind AIR 1930 Bom , 424 See also Motilal v

Punjaji AIR 1933 Nag ,160, Sagarmal v Bhikiisa A.I R 1936 Nag , 252,
Jihach Mahto v Shibshanker AIR 1933 Pat , 687 For earlier
Calcutta view, '^ee Nagendra Chandra v A mar Chandra (1903) 7 C W N ,
725, Baisnabrhandra \ Ramdhon Dhor (1907) 11 CWN, 139

(t) Saiyanat ayana v Mallayya (1935) 58 Mad, 735, 742 FB,

Krishna Chettnar v Nagamoni Animal (1915) 39 Mad, 915

(/) Narayana Rao v Venkatappayya [1937] Mad, 299, Marutha-
rnuthu Naicker v Kadir Badsha (1938) 1 MLJ, 378 FB, overruling
Nataraja Naicken v Ayyaswami Pillai (1916) 32 M L.J , 354,

Thankammal v. Kunhamma (1918) 37 M.LJ, 369. On the death of
the maker, a suit upon the note would lie only against his legal
representatives But where the surviving coparceners are not parties,
the action fads against them Seshayya v Sanjivarayudu (1934) 67
MLJ, 393

(ft) (1933) 61 I.A., 90, 92, AIR 1934 P C , 4.

PARAS. 349-350.] INSOLVENCY OF FATHER.

453

The case must be taken as deciding that the other members
of the family would be liable for moneys borrowed upon
promissory notes executed by a karta for the purpose of the
family business; but it cannot be taken as deciding that the
liability of the other members is upon the note itself.

The dislmction pointed out in Narayana Rao v. Venkatap-
payya between a suit upon the debt and one on the
note lb real enough. The special presumptions and rules
laid down in sections 118 to 122 of the Negotiable Instruments
Act cannot be applied as against the other members who are
not parties to the instrument. Accordingly consideration foi
a note cannot be piesumed but will have to be proved by the
pel sons suing upon the note. Nor can an indorsee of a note
make the other members liable unless it is proved that as
between the original parties there was consideration for the
note(/). A recent Full Bench of the Madras High Couit
has held that the indorsee of a piomissoiy note executed bv
the managing member of a joint Hindu family is limited to
hib remedy on the note unless the indorsement is so worded
as to transfer the debt ( m )

§ 350. Where a Hindu lather who with his sons
constitutes a Mitakshara undivided family is adjudicated an
insohent, his undivided interest in the j'oint family propel ty
as well as his separate property vests in the Oflieial Assignee
under the Pi esidenc^ -Towns InsoKeiiey Act, 1909, or in the
Court or the Receiver under the Provincial Insolvency Act.
1920 in)

The undivided interc'sls of the sons do not vest in the
Official Assignee oi Receiver on the father’s insolvency (o) .
But the insolvent fathei’s power to sell or mortgage the joint
family piopcities foi payment of his antecedent debts, not
inclined for immoral or illegal purposes, vests in the Official
Assignee or Receivei It is settled that this is by virtue of
sec. .52. sub-sec. 2 (b) of the Presidency-Towns Insolvency

(/) ri937] Mad , 299 The other members are liable only to
the extent of their interest in the joint family property, unless they
are contracting parties, Miitsaddi Led v. Sakhir Chand (1936) 17 Lah .
311; Sinkant Lai v. Sidheswan (1937) 16 Pat., 441. A minor member
IS not personally liable Bishen Singh v. Kidar Nath (1921) 2 Lah.,
159; Jwala Prasad v Bhiida Ram (1931) 10 Pat., 503.

(m) Mariithamuthu Naicker v. Kadir Badsha (1938) 1 M.L.J.,
378 F.B.

(n) Sections 17 and 52 (2) (b) of the Presidency-Towns Insolvency
Act, 1909, and section 28 of the Provincial Insolvency Act, 1920.

(o) Sat Narain v. Behari Lai (1925) 52 I.A., 22, 39. 6 Lah., 1
reversing (1922) 3 Lah., 329 F,B.

Insolvency
of father.

454

LIABILITY FOR DEBTS.

[chap. IX,

Act which provides that “the capacity to exercise and to take
pioceedings for exercising all such powers in or over or in
respect of property as might have been exercised by the
insolvent for his own benefit at the commencement of his
insolvency or before his dischaige” also vests in the Official
Assignee (p). It has been held by Courts in India that the
power of the father to sell his son’s interest for the payment
of his pioper debts is “property” within the meaning of
sec 28 (2) of the Piovincial Insolvency Act (q) .

The Official Assignee, or the Court or the Receiver, as the
case may be, has therefore the power to sell the joint family
property for the payment of the debts of the insolvent father
which are not immoral or illegal. But as the father’s power
of sale for his antecedent debts exists only so long as the
joint family property is undivided, the capacity of the Official
Assignee, or the Court or the Receiver, as the case may be,
exists only so long as there has been no paititibn or even divi-
sion in status It has accoidingly been held that the Official
Assignee or Receiver cannot sell the joint estate for the
payment of the father’s debts after a suit for paitUion had l)i*en
instituted by an\ of the sons, which constitutes a severance in
interest (r) Any unilateral declaration of intention to sever
in interest equally puts an end to the power of the Official

(p) Sat Narain v Das (1936) 63 I A , 384, 17 Lah , 644 affirming
(1926) 7 Lah , 376, Official Assignee of Madras v. Ramachandra Ay^ar
(1923) 46 Mad , 54, Sellamuthu Servai, In re (1924) 47 Mad , 87 F B ,
Balusami Ayyar, In re (1928) 51 Mad., 417 F.B.

iq) Sankaranarayana v Rajamani (1924) 47 Mad, 462, Seetha-
rama v Official Receiver, Tanjore (1926) 49 Mad, 849 F B. (“Such
power vcbts as within S. 2d of the Act,” per Venkata-

subbarao J ib p 867) , V enkataramana v. Narayana AIR.
1937 Mad, 556, Bauandas v Chiene (1922) 44 All, 316,
Allahabad Bank Ltd v. Bhagwan & Co, (1926) 48 All., 343, Om
Prakash v Motirani (1926 ) 48 All, 400, Ramkulam v Kailash (1930)
52 All, 493, Anandprakash v Naraindas (1931) 53 All, 239 F.B ,
Khemchand v Narayindas (1925) 6 Lah, 493, Siddheswarnath v
Deoknli (1934) 9 Luck, 304, AIK 1934 Oudh, 1, Chairman, District
Board, Monghyr v SheodiUtsingh (1926) 5 Pat, 476, Bholaprasad v
Ramkumar (1932) 11 Pat, 399, Bishwanath v Official Receiver (1937)
16 Pat, 60 FB, overruling Nilkantha v Debendra (1936) 15 Pat., 363,
Haridas v Lallubhai (1931) 55 Bom, 110 disapproving the observations
of Macleod, C J , in Shripad v Basappa (1925) 49 Bom, 785, 787; Lalji
V Bansidhar A I K 1933 Nag, 373, Fateh Chand v. Hiralal AIR 1935
Nag , 193 The view expressed in the following cases that the son’s share
itself vests in the Official Assignee or Receiver is incorrect; Amolak v
Mansukh (1924) 3 Pat, 857, Fakirchand v. Motichand (1883) 7
Bom, 438, Rangayya v Thanickachala (1896) 19 Mad., 74

(r) Satnarain v. Das (1936) 63 I A., 384, 17 Lah, 644 approving
Balusami her, in re. (1928) 51 Mad., 417 F.B. and disapproving
Sitaram v Beniprasad (1925) 47 AIL, 263, Knshnamurthy v. Sundara
moorti (1932) 55 Mad., 558.

PARAS. 350-350 A.] INSOLVENCY OF MANAGER.

455

Assignee or Receiver to sell the son’s share for the father’s
debts. Similarly when the son’s interest in the family property
has been attached in execution of any decree against him, the
power of the Official Assignee or Receiver to sell it for the
payment of the debts of the insolvent father is gone ( 5 ).

Though the power vested in the Official Assignee or Receiver is
subject to the same limitations as in the case of the father,
the death of the latter does not terminate it (0- The Official
Assignee or Receiver is entitled to make the son’s share liable
for the father’s debts, even if the father’s power of sale did
not vest in him, or after vesting in him. the power became
extinguished by a division in status (a).

§ 350 A. Where the managing member of an undivided Insolvency
Hindu family is adjudicated an insolvent, his undivided <>l*^anager.
interest in the joint family properly as well as his separate
property, just like that of any other coparcener, vests in the
Official Assignee or Receiver. The question whether or not
the power which a managing member, not being the fathei
of the other coparceners, possesses to sell or mortgage the
joint family propeity including the interests of the other
coparceners for debts contracted for family purposes vests
also, on his insolvency, in the Official Assignee or Receiver
cannot be regarded as finally settled. It has been held in
some of the cases that like the father’s power to sell or mort-
gage for his antecedent debts, the managing member's power
to sell for family debts vests in the Official Assignee or
Receiver {v) This view would seem to derive no support
from the iclevant provisions of the Presidency -Towns
Insolvency Act or the Piovincial Insolvency Act or from the
two decisions of the Pi ivy Council in Satnarain v. Behan

(s) Gopalaknshnayya v. Gopalan (1928) 51 Mad., 342; Official
Receiver v. Arunachala (1933) 66 M.L.J., 412 affirming A.I.R. 1931
Mad., 118, Subbarao v. Official Receiver^ Guntur (1935) 42 M.L.W.,
295, A.I R. 1935 Mad., 427, Official Receiver v. Imperial Bank (1936)
59 Mad, 296, Kanyaka Parameswaramma v. V enkataramiah (1936)
71 M.L.J., 294, Palaniappa v. Palani (1936) 71 M.L.J., 541; Shripad v
Basappa (1925) 49 Bom., 785

(f) Sitarama v. Official Receiver (1926) 49 Mad., 849 F.B., Balu-
swami, in re (1928) 51 Mad, 417 F.B.; Fakirchand v. Motichand
(1883) 7 Bom, 438; Gorishankar v. Official Receiver (1932) 13
Lah., 464.

(a) (1928) 51 Mad., 417, 439 F.B. supra,

(t;) Rangayya v. Thamkachala (1896) 19 Mad., 74; Nunnesetti v
Chidaraboyina (1903 ) 26 Mad., 214; Official Receiver v. Rama-

chandrappa (1929) 52 Mad, 246; Sardamal v. Aranvayal (1897) 21
Bom., 205; Kanhaiya Lai v. Dahha Bari A.I.R. 1933 Nag., 150; Mt,
Champa v. Official Receiver, Karachi (1934) 15 Lah., 9,

156

LIABILITY FOR DEBTS.

[chap. IX,

Lai (/t ) and in Salnarain \. Das [x) . In Satnarain v Behari
Lalf it was held that the definition of 'pioperty’ in section 2 (d)
of the Provincial InsoKencv A(t and in section 2 (e) of
the Presidency-Towns Insolvencv Act contemplates only an
absolute and unconditional power of disposal and

not a power which is conditional upon the debt of a Hindu
father or managei being of a particular character!}^)
Neithei the share of a son. nor the share of any othei
coparcenei can itself vest in the Assignee The intention ot
the Statute is not that the property itself, viz , the share of
the son or the coparcener vests in the Assignee The provi-
sions of section 30 of 11 and 12 Vic Ch 21 refei 'o
powers vested in any such insolvent which he might lawfully
execute for his benefit and the Indian derisions under that
\ct cannot be regarded as good law under the provisions ol
section 52 (2) (b) of the Presidency Towns Insolvency Act

or section 28 (2) read with section 2 (d) of, the Provincial
Insolvency Act The decision of the Privy Council that the
father's power to sell or mortgage the son's mteiest in the
joint estate vests in the Assignee is based on the language
of s. 52 (2) (b) of the Presidency-Towns InsolvencN Act,
according to wlinh the property of the insolvent shall com-
prise uiler aha the capacity to exercise all such powers in or
over or in respect of such property as might have been
exercised by the insolvent joj Ins oivn benefit There can be
no doubt that the father’s power under Hindu law to discharge
his own debts is for his own benefit Whethei the decision in
Satnarain v Das applies to the insolvencv of a father under
the Piovincial Insolvencv Act is not altogether free from
doubt Since the decision in Satnarain v Das (z)
apparently approves of the decisions in Baivan Das v
Cliiene (a) and in Sita Ram v Beni Prasad (b) which wer^
under the Provincial Insolvencv Act, it may be taken as
settling the law in favour of the view that the father’s power
of disposal vests in the Receiver under the Provincial
Insolvency Act. There can however be little doubt that
neither the provisions of s 28 read with sec 2 (d)

of the Provincial Insolvency Act nor the woids in
section 52 (2 1 (b) of the Presidency Towns Insolvency Act

iw) (1925) 52 1 A, 22, 6 Lah , 1

{x) (1936) 63 I A, 384, 17 Lah, 644.

(y) (1925) 52 I A, 22, 6 Lah., 1.

(z) (1936) 63 I A, 384, 17 Lah, 644

(a) (192") U All, 316

ib) il9ln 47 All., 263.

PARAS. 350 A -350 B.j INSOLVENCY OF COPARCENER.

457

support the view that a disposing powei which a man
may exeicise for his own benefit will cover the case of the
power of a managing member of a Hindu undivided family
to dispose of the joint estate including the interest of the
other coparceners for the discharge of debts contracted by
him for family necessity or benefit. The words ‘for his own
benefit’ have been taken from the corresponding English
Bankruptcy Statutes and it has been held in England that
d power that can only be exercised for the joint benefit ol the
bankrupt and another is not a power that can be exercised foi
his own liencfit (c). That expiession is confined to powers
capable of being exercised foi the benefit of the bankrupt
alone. 'i"he karta’s power is exercised not for his own benefit
but foi the benefit of himself and all the coparceners. His
power of disposal is not an absolute and unconditional power,
as is contemplated b\ the Insolvency Acts in India (d).

\oi can sinh^a power be held to be property within the
meaning of either of the two Acts, for a power to dispose foi
the benefit ol the family is a pow^ei in the nature of a trust
and not a powei (or his own exclusive benefit (e).

J 35011 On the insohenc> of a member of the copar- insolvency of
( enary, his inteiest in the joint estate as well as his separate coparcener
property vests in the Official Assignee oi Receiver together
with his light to a partition and both are available for the

(c) In re Tayloi's Settlement Tnist6 [19291 1 Ch. 435, In re
Mathieson [1927] 1 Ch. 283, In the goods of Jane Turner (1887) 12
P.D, 18. “The distinction helween a power of appointment
over pioperly and property ha^ always been recognised, and it has
always been held that an unexercised power is not Hhe property' of
the donee of the powei The power exercises an effect upon property
l)ut per se it is not piopeity”. Ex parte Gilchrist (1886) 17 Q.B.D., 167,
321 Cited in 11927] 1 Cli 283, 294 supra

id) The dissenting judgment of Curgenven J. in (1929) 52 Mad,
246, 252 supra and that of Macleod C. J. in Shripad v. Basappa (1925)

49 Bom., 785, 787 would seem to be right. Bhashyam Ayyangar J.
commenting upon the older statutes which are no longer in force in
India, observed in Nunna v. Chidaraboyina (1903) 26 Mad, 214,
222 “If the question were res Integra and not covered bv
a course of judicial decisions, 1 should entertain considerable
doubt as to whether a power, which under the Hindu law,
a managing member of a joint Hindu family has over the interests,
and shares of the junior members in the family property is a power
vested in the insohent which he can lawfully exercise for his benefit. “

50 too. Devadoss J expressed his own view in strong terms in (1929)
52 Mad., 246, 258 though he felt himself bound by authority.

(e) See Seetharuma Chettiar v. Official Assignee, Tanjore, (1926)
49 Mad., 849, 856 where the decision in Nichols v. Nixey (1885)
29 Ch. D., 10()5 is distinguished.

458

LIABILITY FOR DEBTS.

[chap. IX.

payment of his debts (/). When the estate of a coparcener
has vested in the Official Assignee under an insolvency, that
estate would continue after his death and would not be
defeated by survivorship (g) .

(/) Nunnesetti v Chidara Boyina (1903) 26 Mad, 214, Lashmanan
V Srinivasa A.I.R. 1937 Mad, 131, 71 MLJ, 707. See also
V enkatarayudu v Swaramakrishnayya (1935) 58 Mad , 126

(g) Fakirchand v Motichand (1883) 7 Bom., 438, see also Gon
Shanker v Official Receiver^ Delhi, (1932) 13 Lah., 464.

CHAPTER X.

ALIENATIONS.

§ 351. The law of alienation falls naturally into two
divisions, according as the property in question is separate or
joint. Where it is joint, the person who makes the alienation
may do so in his character as father, as managing member of
the family, or as an ordinary coparcener. Further the
alienor may purport to dispose of more than his share in
the entire property, or of a portion equal to, or less than,
his share. Again the alienation may be voluntary or
involuntary (a) Finally, the validity of an alienation as well
as the mode in which the rights of alienees are worked out
depends ujjon the law of the Mitakshara as administered in
the different provinces oi upon the law of the Dayabaga.

§ 352. A Flindu governed by the Mitakshara law has full
powers of alienation ovei his separate property, that is. pro-
perty which IS not held by him jointly with others. He can
sell oi mortgage it, or alienate it by gift inter vivos oi bequeath
it by will eithei in favoui of a stranger or relative. A father
who is sepal ated from his sons can, of course, dispose at
pleasuie, not only of his share, but of all property acquired
after partition (a^) ; since “one born pieviously to the distribu-
tion of the estate has no property in the share allotted to his
father” (a“). The same rule will apply as to self-acquisition.

and on

the same gTounds, for it

IS not

the

co-

parcenary

property

oi the co-heirs (b)

. In

one

pass-

age I ijrianesva/a

expressly states that

“the

son

must

acquiesce

m the

father’s disposal of

his

own

self-

acquired property” (c). In an earlier passage, however, he
states that the fathei ‘"is subject to the control of his sons
and the lesl. in icgard to the immovable estate, whether
acquired by himself, or inherited from his father oi othei
predecessor,” citing as an authoiity the text of Vyasa [d)

(a) Sales, in execution, of the interests of the father or the
managing member or of the coparceners have been dealt with in the
last chapter as also the extent of the vesting on insolvency of their
interests in the Official Assignee or Receiver. (See ante §§350, 350 A,
350 B). Alienations of impcirtible estates are discussed in Chapter XIX
(fli) Narada, XIII, 43, Vivada Chintamani, 314; Mit., I, i, 30,
see as to the early law, ante §§ 258-261.

(rt2)]Vtit, I, VI, 5.

(ii) Mit., I, IV, 1, 2.

(c) Mit., I, V, 10
id) Mu., I, 1, 27.

Division of
subject.

Alienation of

separate

property.

Of self-
acquired
immovable
properly.

460

ALIENATIONS.

f ( HAP. X,

Heine, iheie was a conflict of decisions as to whether self-
acquired immovables are absolutely at the father’s disposal
oi not (e) Eventually all the High Couits aflirined the
father’s absolute powers of disposition ovei his self-acquired
immovable property!/) Finally m 1898, the Judicial
Committee, on a review of all the texts and rulings, held
that the fathei of an undivided family subject to the Mitak-
vhara law, had full power of disposition over his self-acquired
lmlno^able propel tv Thev said of the conflicting texts of
the Mitakshaia. “All these old text-books and commentaries
are apt to mingle religious and moral considerations, not
being positive laws, with rules intended loi positive laws . . .
It IS. as then Lordships think, the most leasonable inference
that the passage in section 1. belongs to the former class
of pieiepts. and those of <^ections 4 and S to the latter"’ (g)
And similarlv a man i^ at jic'ifeit libeitv to dispose of pro-
perlv which he has inhciited ( ollatcially oi a‘^ an heir to his
mateinal giandfathei, oi in such a mode that his descendants
do not l)v birth acquire an ecfual interest m it (h) And
whatever be the nature of the piojiertv. or the mode in which it
has been acquiied, a man without issue may dispose ol it at hi&
pleasuie. as against his wile, oi daughters, or his remote
dc'seendants. oi his collateral relations (z)

(c>) 1 hira IIL 26], 2 siu II L 436 441, 150, ratadiund v
Reeb Ram (1866) 3 Mad HC, 50, 55, Mahasoohh \ Rnd/ee (1869)
1 NWP. 153 (against tlu father"'- power) For the contrary opinion,
‘-ee 1 W MacN , 2 cited with appioval by the Privy ( ouncil hut a*^
to a different point, Gopec Krist \ Gunga Persaud (1854) 6 MIA
53. 77, see too Rttngamma v Aldianima (1852) 4 MIA, ], 103

(/) Muddun Gopal \ Ram Ruksh (1863) 6 WR, 71, Ojoodhya

V Ramsarun, ib , 77. Raja Ram Tetvary v Luchmun (1867) 8 WR
15, Sudanund ^ ^oorjoo Moncr (1869) 11 W R., 436, Bishcn Perkash

V Paiva (1873) 20 W.R , 137 (PC) affrmg (1868) 10 WR, 287,
Nana Nurain v Hiirec Plinth (1862) 9 MIA. 96, 121, Gangabai v
Vamnnaji (1864) 2 Bom II C , 301, Sital v Madho (1877) 1 \11 , 394,
Subbayya v ^urayyn (1887) 10 Mad, 251, Nagahngam Pillai \
Ramachandra Tevai (1901) 24 Mad 429, Somasundara Mndahar v
Ganga Bissen (1905) 28 Mad. 386, ^ee Vivada Chinlamani, 76, 229,
but see p 309

((I?) Ran Pahvant Sitmh \ Ham Kishori (1898) 25 1 \ >1, 67

20 All, 267

{h) See ante § 275, Jugmohandas v Mungaldas (1886) 10 Bom
528, Raj Kishore v Madan Gopal (1932) 13 Lah , 491, Muhammad
Husain khan v kishia I\andan (1937) 61 I A, 250, [19^71 All, 655

(/) Miilraz \ Chalekarn (1838) 2 MTA, 54, Naghitihmee v
Gopoo (1856) 6 MI A, 309, Narottam v Narsandas (1866) 3 Bom
HC (A CD, 6, Ajoodhia ^ Kashee (1872) 4 N W.P , 31 These
were all cases of wilK Of c(uirse, as regards collaterals, it is assumed
that It has not been acquired by him in such a way as to make them
coparceners with him in re'-pect of it Tayumana v, Perumal (1864)

1 Mad H.C, 51.

PAHAS. 352-353.]

father’s power

461

On principle, it would seem that where a father separates
from his sons reserving a share for himself, a son born after
partition is a coparcener with him in the share allotted to
the father; for, on his birth he acquires a right in the ances-
tral property allotted to the father. The fathei therefore can
have no right to dispose of his share at his pleasure as against
his aftei-born son (;) . The last surviving coparcener in a
family can at his will alienate the entire joint family property
as at the moment of alienation it is his exclusive property.

353. Under the Dayabhaga law, a father has absolute
poweis of alienation not only in respect of his separate pro-
perty, but also in respect of ancestral properly, whether
movable oi immovable; for, the sons have, according to that
system, no interest by birth in the ancestral estate and can
neither enforce a partition against the father nor control his
management. The father is the absolute owner of the property.
Jimulavahana took the view that the text of Vyasa prohibiting
a sale or gift of ancestral immovable estate was intended to
show a moral offence, but not to invalidate the sale or other
tiansfer (/U. In 1812, the Sudder Court held that a gift b> a
fathei of his whole estate, real and personal, ancestral and
otherw^ise, to a younger son during the life of the elder, was
\alid though the gift of the whole ancestral landed propeitv
was immoral In 1831, the Supreme Court of Bengal

(y) Mit., I, 1, 30; I, VI, 5 But m Kali Das v. Krishan
(Ihandrada^ (1869) 2 Beng L.R , 103, 120; a Dayabhaga case (see
p 105, per Norman J.) dealing with the Mitakshara, a contrary view
was expressed by Sir Barnes Peacock, C. J. His view would seem
to be opposed to the fundamental principle of the Mitakshara law
for, where a coparcener, not being a father, obtains a share at parti-
tion, any son born to him after partition will acquire a right by birth
in that share as ancestral property. The only effect of the partition
IS to cut off the interests of the coparceners, whether sons or others
who have entered into the partition. The statement m the Mitakshara,
I, vi, 2 that “he obtains after the demise of his parents both their
portions” emphasises the view that the other brothers are not entitled
to that share which is reserved fur the father after the death of the
parents and does not involve the conclusion that the after-born son
has no right to it during his life. For, if he is to get his father* -
share, it cannot be at the absolute disposal of the father. The view
that he is a coparcener with his father is reinforced by Mit., I, vi, 7
which declares that where his father reunites, the after-born son is
also a coparcener along with the others. This view derives support
from the Smritichandnka, XIII, 3 to 11 (pp. 224-226) and the Vivada
Ratnakara (XIV 2) cited in §420.

(A;) Daya Bh., II, 28.

(A;i) Ramkoomar v. Kishenkunker 2 S.D., 42 (52), F. MacN., 277.
See also Eshanchund v. Eshorechund 1 S.D., 2, F. MacN., 356, 340;
Raujikrisno v. Taraneychurn ib , 265, Appx., VIII; Kumla v. Goroo
4 S.D., 322 (410) ; but see the case of Bhowanny Churn v. The heirs
of Ram Kaunt (1816) 2 S.D., 202 (259), F. MacN., 283, 294.

After-bom

son.

Dayabhaga

law.

Father’s

power.

462

ALIENATIONS.

[chap. X,

Power of
coparceners.

referred the question to the Judges of the Sudder Dewanny,
who returned the following certificate: “On mature considera-
tion of the points referred to us. we are unanimously of
opinion that the only doctrine that can be held by the Sudder
Dewanny Adaulut, consistently with the decisions of the
Court, and the customs and usages of the people, is that a
Hindu, who has sons, can sell, give, or pledge, without their
consent, immovable ancestral property, situated in the province
of Bengal, and that, without the consent of the sons, he can,
by will, prevent, alter or affect their succession to such pro-
perty” (/). This certificate has ever since been accepted as
settling the law in Bengal, on the points to which it refers (m)
and It makes no difference that the property is impartible,
and descends by the rule of primogeniture (n)

^ 351 As regal ds those who are coparceners in Bengal,
that IS brothers, cousins, or the like, who have taken property
jointly by descent, oi who have acquired it jointly, there is
also no difficulty. In Bengal the right of every copaicener is
to a definite share, though to an unascertained portion of the
whole property. This right passes by inheritance to female
or other lelalions. just as if it weie already divided, and it
may be disposed of by each male pioj3rieloi just as if it were
sepal ate or self-acquired property And such alienations will
be taken into account as part of his shaie in the event of a
paililion. But, of couise, no one can dispose of more than
his share, unless by consent of the others, or for necessary
purposes (o) And so an undivided coparcener may in
Bengal lease out his own share, and put his lessee in
jiossession ( p)

(/) Juggomohun v Neemoo, Morton, 90, Motee Lai v Muter jeet
6 S.D., 73 (85).

im) See per curiam, Ramkishore v Bhoobunmoyee S D of 1859,
250 , affd on review, S D of 1860, i, 489.

in) Uddoy v Jadublal (1880) 5 Cal., 113; Narain v. Lokenath
(1881) 7 Cal., 461. Of course there never was any doubt as to the
right of a Bengal proprietor to dispose of his property to the prejudice
of relations other than his own issue, as for instance to deprive his
widow of her share on a partition. Debendra v. Brojendra Coomar
(1890) 17 Cal., 886, F MacN., 360; Bhowanee v. Mt Taramunee
3 S D., 138 (184); Sheodas v Kunwul 3 S D., 234 (313), Tarnee
Churn v. Mt, Dasee, 3 S D , 397 (530) .

(o) Rajbulubh v. Mt Buneta 1 S D., 44 (59) , Prannath v. Cali'
shunkur 1 S.D , 45 (60), Anundchund v Kishen 1 SD, 115 (152),
see Mr. Colebrooke’s notes Ramkanhaee v. Bung Chund 3 S.D., 17
(22) , Kounla v Ram Huree 4 S.D., 196 (247) , Sakhawat v. Trilok
5 S D , 338 (397) ; 2 W MacN , 291, 294, 296, 306, n., 313.

ip) Ram Debul v. Miterjeet (1872) 17 W R , 420; Macdonald v
Lalla Shib (1874) 21 W.R., 17.

PARA. 355.]

father’s power.

463

§ 355. Next, as to the position of the father in a Mitak-
shara joint family. Apparently at one time, the falhei’s power
over ancestral movable property was larger than his power
over ancestral immovable property. But by the time of
Vijnanesvara, it is evident that the distinction had practically
disappeared. For, Vijnanesvara himself does not claim for
the father an absolute power of disposal over movables but
only an “independent power in the disposal of them for
indispensable acts of duty and for purposes prescribed by
texts of law, as gifts through affection, support of the family,
relief from distress and so forth” (^). The comment of
Nilakantha on the text, “The father alone is master of all
gems, pearls and corals” was that it signified the father’s
independence in wearing and using ear-rings, rings, etc., but
not in giving or alienating them(r). The question of the
father’s power over movables arose incidentally in several
cases, but for ^sometime never received a full discussion ( 5 ).
In 1872, the Allahabad High Court held that ancestral
movables were chargeable with maintenance, since whatever
might be the father’s power of disposal, they were not the sub-
ject of such separate ownership by him as to be free from the
ordinary charges affecting Hindu inheritance («) . In Lakshman
Dada Naick v. Ramchandia, a Hindu under the Mitakshara
law died possessed of a large amount of ancestral movable
property, leaving two undivided sons. By his will he
bequeathed to one of his sons nearly the whole of the pro-
perty. The Court, after reviewing the provisions of the
Mitakshara and the Mayukha, and the previous decisions set
aside the will. They held that it could not be valid either as

(</) Mit , I, 1, 27; Viramit , 1, 30 (Setlur ed , 286). this is tho
view taken by Sir T. Strange (1 Stra. H.L., 20, 261) and Dr. Mayr.
(p. 40). In the Punjab a father is said to be at liberty to make gifts
of ancestral movable property without the consent of his male heirs,
but not of immovable property, whether ancestral or self-acquired,
Punjab Customary Law, 11 , 102, 163, 178. Mr. Colebrooke and Mr
MacNaghten apparently considered that in regard to ancestral movables
the power of the father is only limited by his own discretion and
by a sense of spiritual responsibility (2 Stra. H.L., 9, 436, 441, 1
W. MacN., 3) . The latter passage was cited with approval by the
Privy Council in Gopeekrist v. Gungapersaud (1854) 6 M.I.A., 53, 77,
but this point was not then before them.

(r) Vyav. Mayukha, IV, 1, 5.

(s) Sudanund v. Bonomallee, Marsh., 320, 2 Hay., 205; Nallatambi
V. Mukunda (1868) 3 Mad. H.C., 455. See, too, per Turner, C.J.,
Ponnappa v. Pappuvayyangar (1882) 4 Mad., 47; Rayacharlu v. Yen-
kataramaniah (1868) 4 M.H.C., 60; Beer Pertab v. Maharaja Rajender
(1868) 12 M.I.A., 1, 38* Pauliem Valloo v. Pauliem Soorya (1877)
4 I.A., 109, 1 Mad., 252.

(i) Shib Dayee v. Doorga Pershad (1872) 4 N.W.P., 63.

Mitakshara

law.

Father’s
power over
ancestral
movables.

464

ALIENATIONS

[chap. X,

Gifi

of affrclKHi

a gift or db a partition. They said: “It would be impossible
to hold a gift of the great bulk of the family propeity to
one son, to the exclusion of the other, to be a gift prescribed
by texts of law; for the texts which we next quote distinctlv
prohibit such an unequal distribution” . In Baba v
Tinirna, a Full Bench of the Madras High Court held that an
undivided Hindu father has no power except foi purposes
wai ranted by special texts to make a gift to a stianger of
ancestral estate whether movable or immovable (u). In
Allahabad also, it has been held that a gift by a father to
one son of ancestral movable property to the detriment of the
other, not for any of the special purposes specified by the
Mitakshara, is invalid (r) The special purposes mentioned
in the Mitakshara I, i, 27 as justifying the father’s alienation
of ancestral movables are, except in one instance, the same
as those mentioned in I, i, 28 and I. i, 29 They are relief
from distress, support of the family and indispensable duties,
in othei words, they lefer to family necessity or benefit and
include pious purposes It mav theiefoie be taken as
settled that, except in the matter of gifts through affection,
the father has no greater power ovei ancestral movables than
over ancestral immovables (w)

The lathers powei to make gifts thioiigli affection within
leasonable limits ol aiic'cstral movable propel t> has been
fully recognised <x) In Ranialinga v Narayana, the Pnvv
("ouncil held that ‘ the father has undoubtedly the power

U^j Lakshman \ Ramachandra (1876) 1 Bom, 561, affd (1881)
7 1 A., 181, 5 Bom 18, practically overruling the previous decision in
Ramchandra v Mahadev 1 Bom H C. Appx , 76 (2nd ed ) , arc
Chatturbhooj \ Dharanibi (1885) 9 Bom. 438, Jugmohan Das \
Mangal Das (1886) 10 Bom, 528, Rathnani v Siva Suhramania (1892)
16 Mad.. 353

{a) (1884) 7 Mad 357 FB

(v) Nand Ram v Mangal Sen (1909) 31 All , 359, “re also

Bankey Lai v Nattha Ram AIR 1929 All , 199

(w) Jugmohandas v Mangaldas (1886) 10 Bom., 528, 549, (1909)
31 All., 359, supra y see also per Ranade, J., in Hanmantapa v Jivubai
(1900) 24 Bom, 547, 553, 554

(;r) Bachoo v Mankore Bai (1907) 34 lA, 107, 31 Bom, 373
affirming (1905) 29 Bom, 51 (gift to daughter of Rs. 20,000 where
the estate was worth 10 to 15 lakhs) , Hanmantapa v Jivubai (1900)
24 Bom , 547 (gift of movables worth Rs. 2,000 out of ancestral estate
worth Rs. 23,000 to a widowed daughter-in-law) , Madhusoodhan v
RamjL (1920) 5 PLJ, 516 (ante-nuptial provision for maintenance
of daughter and son in-law) , but see Kamakshi v. Chakrapani (1907)
30 Mad., 452 (gift of considerably large portion of property to
daughter, held invalid), Jinnappa v Chimmava (1935) 59 Bom., 459,
462. It has been held that gifts of affection of immovable property
can be made. Ramasami v. Vengiduswami (1899) 22 Mad., 113.
See infra § 370.

PARAS. 355-356.] father’s power.

tinder the Hindu law of making, within reasonable limits,
gifts of movable property to a daughter” (ac^). But such
gifts through affection of joint family property when they are
by will, are invalid since the right of the coparceners vests
by survivorship at the moment of the testator’s death and
there is accordingly nothing upon which the will can
operate ( 7 ). In Subbarami v. Ramamma, the Madras High
Court held that a will made by a Hindu father bequeathing
certain family properties for the maintenance of his wife
was invalid as against his infant son though it would have
been a {iroper provision if made by him, during his life-
time ( 2 ). This may be in a sense valid enough. There is
however no compelling logic, but great inconvenience, m not
regarding wills ‘^as gifts to lake effect upon death at least
as to the property which they can transfer and the persons
lo whom it can be transferred” (a). The contrary would be
in accordance with the general principle of jurisprudence
-recognised in tfie Tagore case as applicable to Hindu law.

356. Far more important is the father’s power to
alienate the family property for the discharge of his antece-
dent debts, which not being illegal or immoral the sons are
under a pious obligation to discharge. The principle of the
Mitakshara law that sons have independent coparcenary rights
in the aruestral estate and that the father is subject to their
control m the alienation of the family property has been
almost destroyed by the princ iple which has been established
by the decisions that the sons cannot set up their rights against
their father’s alienation for an antecedent debt or against his
creditors’ remedies for their debts, if not tainted with
immorality (b). The attempt made by Lord Shaw in Sahu
Ranis case (c) to reconcile the two conflicting principles by
restricting and postponing the son’s liability for the father’s
debts till after the father’s death has eventually proved un-
successful. The law is now settled by the decision of the

ix^) (1922) 49 I.A., 168, 173, 45 Mad., 489 (gift to daughter of
Rs. 8,000).

(y) Lakshman Dada Naik v. Ramchandra (1881) 7 I A, 181, 5

Bom., 48, 62, following Suraj Biinsds case (1879) 6 I. A., 88, 5 Cal.,
148; Villa Butten v. Yamenamma (1874) 8 M.H.C.R., 6; Lakshmi v.
Subramama (1889) 12 Mad, 490 (will treated as antc-adoption

agreement) ; Parvatibai v. Bhagwant Vistvanalh (1915) 39 Bom., 593.

(z) (1920) 43 Mad., 824 distinguishing Appan Palm v. Srinivasa
(1917) 40 Mad., 1122 as a case of a gift made with the consent of the
coparcener; see also Bhikhabai v. Purshotham (1926) 50 Bom., 558.

(а) Tagore v. Tagore (1872) LA. Supp., 47, 69.

(б) Nanomi Babuasin v. Modun Mohun (1886) 13 I.A., 1, 13 Cal.,
:21, 35; Girdharee Lai v. Kantoo Lai (1873) 1 I. A., 321; ante §330.

(c) Sahu Ram v. Bhup Singh (1917) 44 I.A., 126, 39 All., 437.

32

465

By wilL

Right of
father to sell
to satisfy
his own debts.

466

ALIENATIONS.

[chap.

Authority
of father.

Restricted
by rights
of issue.

Priv> Council in Brij Narain v. Mangla Prasad {d) and ther
clear tendency of the courts is to recognise an alienation for
an antecedent debt of the fathei, not being illegal or immoral,
as on the same footing as an alienation for a family necessity.
The doctrine of the father's power to alienate for his antece-
dent debt has received a great extension by the recognition of
the involuntary transfer oi assignment of that power on his-
insolvencv to the Official Assignee or Receiver (e) .

^ 357 Except in the mattei of gifts through affection
and of alienations for antecedent debts and in the matter of
his power to effect a partition amongst his sons (/). there is
under the Mitakshara law no distinction between a father and
his sons(g). They are simply coparceners (/i j . So long
as he is capable the lather is the head of the family He is
in all cases naturally and in the case of infant sons necessarily
the manager of the joint famiK estate (i). He is entitled
to the possession of the joint property (/). •-He directs the
concerns of the family within itself and repiesents it to the
world (k) . The father has no greater power over coparcenary
properly than any other managing membei who is not the
fathei. Where the property is ancestral each son acquires on
his birth an inteiest equal to that of his father. If it is
acquired by joint labour oi joint funds, then, from the very
nature of the case, all stand on the same footing. And in the
same manner his grandsons and great-grandsons severally
take an interest on then respective births in the rights of
their fathers who repieseiit them, and therefore iii unascer-
tained shares of the entire pi operty. It is, therefore, an
established rule that a fathei can make no disposition of the
joint property which will prejudice his issue, unless he obtains
their assent, if they aie able to give it, or unless there is

{d) (1924) 51 I A, 129, 46 All, 95.

(e) This subject has been fully discussed in the last chapter

(/) Allan Venkatapathi Raju v Dantaluri Venkatanarasimharaju
(1936) 63 I A, 397, 401, 119371 Mad, 1, 16

(g) Sahu Ram Chandra v. Bhup Singh (1917) 44 I A, 128, 39
All., 437.

(A) See per curiam, Suraj Bunsi v Sheo Prashad (1879) 6 I.A.,
88, 100; Paianivelappa v. Mannaru (1865) 2 Mad. H C., 416; Raya-
charlu v. V enkataranianiah (1868 ) 4 Mad., H. C, 60; Shudanundv.
Bonomalee (1866) 6 W.R , 256, Lalti Kuar v. Ganga 7 N -W.P., 261,
279.

(i) (1879) 6 I A., 88, 5 Cal, 148 supra, V enkatanarayana v. Soma-
raju [19371 Mad., 880 F.B.

(/) Bhaskari Kasavarayadu v. Bhaskaram Chalapatirayadu (1908)
31 Mad., 318.

(A) Baldeo v. Sham Lai (1879) 1 AU., 77; [1937] Mad., 880 F.R
supra.

PARAS. 357-358.] manager’s authority.

467

some established necessity or moral or religious obligation
to justify the transaction. Where his acts aie questioned, he
has not even the benefit of a presumption in his favour that
they were necessary or justifiable (/). And it makes not the
least difference whether the disposition is in favour of a
stranger, or one of the family themselves (m). The test is,
whether it is an infringement upon their vested rights (n).

358. The powers of a managing member of a joint
familv are governed exactly by the same principles as those
appludble to a fathei. Of course, his personal debts are not
binding upon his coparceners as those of a father are upon
his sons and therefore alienations made by him to pay such
debts do not bind them. The text of Vyasa cited in the Mitak-
shara states the extent of the powers of the managing member,
whether a fathei or not, to dispose of family property. “Even
a single individual may conclude a donation, mortgage, or
sale of immovable property, during a season of distress, for
the sake of the family, and especially for pious purposes”.
Vijnanesvara’s explanation of this text is: “While the sons
and grandsons are minors incapable of giving their consent
to a gift and the like; or while brothers are so and continue
unseparated; even one person, who is capable may conclude
a gift, hypothecation or sale of immovable property, if a
calamity affecting the whole family require it, or the support
of the family render it necessary, or indispensable duties such
as the obsequies of the father or the like, make it unavoid-
able” (o). This explanation evidently limits the authority

(Z) Gurusami v. Ganapathia (1882) 5 Mad., 337; Subramanya v.
Sadasiva (1885) 8 Mad., 75, Chinnayya v. Perumal (1890) 13 Mad.,
51.

im) Baba v. Timma (1884) 7 Mad., 357 F.B. (stranger) ; Riasat
Ah V. Iqbalrai (1935) 16 Lah., 659 (stranger) ; Ganga v. Pirthi Pal
(1880) 2 All., 635 (daughter’s father-in-law), Uma Shankar v. Maha-
bir Prasad A.I.R. 1929 AIL, 854 (distant relation) ; Sohan Lai v. Peare
Lai A.I.R., 1929 AIL, 865 (stranger) ; Ponnusami v. Thatha (1886)
9 Mad, 273 (daughter’s children); Rayakkal v. Subbanna (1892)
16 Mad , 84, (gift to wife to the prejudice of a minor son invalid) ;
Subbarao v. Ademma (1924) 47 M.L.J., 465 (widow and mother) ;
Srtdhara Rao v. Srimvasarao A.I.R. 1934 Mad., 81 (daughter's son) ;
Picha Pillai V. Kathaperumal A.I.R. 1934 Mad., 356 (nephew) ; Sitha-
mahalakshmamma v. Kotayya (1936) 71 M.L.J., 259 (daughter’s

daughter) ; Ningareddi v. Lakshmawa (1902) 26 Bom., 163 (concu-
bine) ; Rab Prasad v. Chhote M unwan A.I.R., 1937 Oudh., 29 (avarud-
dhastree ) .

(/i) Raja Ram Tewan v. Luchmun (1867) 8 W.R., 15; Ganga
Bisheshar v. Pirthi (1880) 2 AIL, 635; Bala v. Balaji (1898) 22 Bom.,
825; (1892) 16 Mad., 84 supra. For instance, where the father
had given a lease of land to the family dewan as a reward for faithful
services, during the minority, and therefore without the consent of his
sons, the lease was set aside: Pratabnaranan v. Court of Wards 3
B.L.R. (A.CJ.) 21, 11 W.R., 343.

(o) Mit., I, i, 28, 29.

ManagerV

authority..

Mitakshara

law.

468

ALIENATIONS.

[chap. X,

of the managing member to cases where the other coparceners
are minors and incapable of giving their consent. But in
order to bind the adult coparceners their express consent is
required. This interpretation is confirmed by what the
Mitakshara says in the succeeding paragraph: ‘"Amongst
unseparated kinsmen, the consent of all is indispensably
requisite, because no one is fully empowered to make an
alienation, since the estate is in common” (p). Accordingly
it was held in Bengal that the consent of those who are
of age cannot be dispensed with, even where the transaction
is for the benefit of the family (</). The contrary, however,
was held in other cases, and seems to have been Mr. Cole-
brooke’s opinion (r). The whole current of authorities,
however, supports the view that the manager of the family
property has an implied authority to do whatever is best for
all concerned, and that no individual can defeat this power
merely by withholding his consent ( 5 ). For, where family
necessity exists, that necessity rests upon the coparceners as
a whole and it is proper to imply a consent of all of them to
that act of the one which such necessity has demanded (0-
His authority, however, only extends to the family property.
His contracts within his authority bind the entire family
property, but they impose no personal liability upon any who
are not parties to the contract or upon their separate
property (w).

ip) Mit , I, 1, 3a

iq) Miithoora v. Bootun 13 W R., 30, acc., 1 Stra TI L , 20.

(r) Jiiggiirnath v. Doobo (1870) 14 WR, 80, 2 Stra. ll.L., 340,
348, Bishambhitr v Siidasheeb (1864) 1 WR, 96, prr Miiltiisami
Ayyar, J, Ponnappa v Pappuvayyangar (1882) 4 Mad, 1, 18 FB

( 5 ) Miller V. Runga Nath Moulick (1886) 12 Cal, 389 (where all
the authorities are reviewed by Mitter J.) , Chhotiran v Narayandas
(1887) 11 Bom, 605, Mudu Narayan Singh v Ranglal Singh (1902)
29 Cal, 797, Biswanath Pershad Mahta v Jagdip Narain Singh (1913)
40 Cal., 342, Sahu Ramchandra v. Bhup Singh (1917) 44 I A , 1, 39
All, 437 In Ghanbullah v. Kholak Singh (1903) 30 1 A, 165, 169,
25 All., 407, It is said: “The karta of an undivided Mitakshara family,
with the concurrence of the adult members of the family can mortgage
the family property for family purposes in case of neces^^ity so as to
charge the property as against all the members of the family”. The
concurrence of all the adult members is a conclusive presumption
of law; Pratap Narain v. Shiamlal (1920) 42 All, 264, Karamchand
T. Ramlabhaya (1926) 7 Lah , 476, see also Shamsunder v Achan-
kuntvar (1898) 25 I A , 183, 192, 21 AIL, 71 (case of a widow)

it) Sahu Ram v Bhup Singh (1917) 44 I A., 126, 130, 39 AIL, 437,
443.

(u) Even where they have not joined in the execution of the
contract, they may be personally liable where they specially authorised
the manager to enter into such transactions on their behalf, Chalamayya
▼. Varadayya (1899) 22 Mad, 166.

PARAS. 359-361.] FAMILY NECESSITY OR BENEFIT.

469

§ 359. The powers of a managing member under the
Dayabhaga law to contract debts or to make alienations for
purposes of family necessity or benefit are the same as those
of a manager under the Mitakshara law (v).

§ 360. The power of a managing member to make an
alienation is confined according to the Mitakshara to three
purposes: (1) in the time of distress (apatkale) ; (2) for the
sake or benefit of the family {kuturnbarthe) , and (3) for
pious purposes (dharmarthe) . The meaning of the terms is
explained by the Mitakshara : “ Hime of distress’ refers to a
distress which affects the whole family; Tor the sake of the
family’ means Tor its maintenance’; and ‘pious pui poses’ are
described as indispensable acts of duty such as the obsequies
of the ancestors” (i*;). According to Patkar, J., “the explana-
tion of the text of Brihaspati by the Mitakshara is by no
means to be ‘considered as exhaustive and may be treated as
illustrative and interpreted with due regard to the conditions
of modern life” (:r). The first of the above purposes would
be a case of legal necessity. The second would cover both
family necessity and benefit. It is fairly clear from the
Mitakshara that the term maintenance or support of the family
(poshana) would include not only transactions which are
absolutely necessary for its bare maintenance but also
transactions positively beneficial to the family in the sense
that they are clearly calculated to raise its economic level
and standard of life.

^ 361. It has long been settled that the managing member
of a joint Hindu family has power to alienate for value joint
family property either for family necessity or for the benefit
of the estate so as to bind the interests of all the undivided
members of the family whether they are adults or minors. The
powers of the manager of a Hindu family were considered by
the Privy Council in a case which is always referied to as

(v) Dwarkanath v. Bungshichandra (1905) 9 Cal. W.N., 879;

Bemola v. Mohun (1880) 5 Cal., 792; Sukhadakanta Bhattacharjya
V. Jogineekanta (1933) 60 Cal., 1197. Sanyasicharan Mandal v.
Krishnadhan (1922) 49 I.A., 108, 49 Cal., 560 (a Dayabhaga case) ;
Benares Bank Ltd, v. Han Narain (1932) 59 I.A., 300, 307, 54 All., 564.

(w) Mit., I, 1, 28, 29.

(re) Ragho V. Zaga (1929) 53 Bom., 419, 426; see also Nagindas
▼. Mahomed (1922) 46 Bom., 312, 316.

Dayabhaga

law.

Mitakshara

text

discussed.

Family
necessity or
benefk.

470

hunoomanpersaud’s case.

[chap. X.

Hunooman-

persaufTs

case.

settling the law on the subject iy) That was the case of a
mother managing as guardian for an infant heir. Of course,
a father, and head of the family, might have greatei powers,
but could not have less, and it has been repeatedly held that
the principles laid down m that judgment apply equally to
a father, or other coparcenei who manages the joint tamily
estate (y^)» Their Lordships said (p. 1-23) : (1| "The power
of the manager for an infant heir to charge an estate not his
own IS, undei the Hindu law. a limited and qualified powei.
It can only be exercised rightly m case of need, or lor the
benefit of the estate” iy‘T. (2) “But where, m the particular
instance, the charge is one that a prudent ownei would make,
in order to benefit the estate, the bona fide lender is not
affected by the piecedent mismanagement of the estate The
actual pressure on the estate, the danger to be averted, or the
benefit to be conferred upon it. in the paiticular instance, is
the thing to be regarded”.

“Rut, of couise, if that danger arises, oi has aiisen, tioni
any misc ondin I to which the lendei is or has been a paitv,
he (annot take advantage of his own wrong, to support a
charge in his own favour against the heir, grounded on a
necessity which his wrong has helped to cause, theieforc the
lender in this case, unless he is shown to have acted mala iide^
will not be affected, though it lie shown that, with betlei
management, the estate might have been kept fiee fiom
debt” (/).

(>1 Hiinoomanpvrsaud \ \Jt Hahooev (1856) 6 M.T.A ,191 The
same rule*; apply to the Cdbe of one who is de factOy though not de jure
nidnager of dn endowment ^heo Shanker v Ram bhewak (1897)

Cal ,77 As to the powers of de facto guardians of minor-,, see
Knbhnachandra (.hoiidhiirY v Rntan Rampal (1915) 20 C N , 615;
beetharamanna \ Appiah (1926) 19 Mad, 768, Tulsidas \ V aghela
Raiswghji (1933) 57 Bom, 1-0 F B overruling Limbaji s Rahi (1925)
49 Bom, 576, Mohanund \tondal \ Najur Mondid (1899) 26 (.dl , 820

(yi) Gharibullah v Kholaksingh (1903) 30 I A., 165, 25 All, 407;
Gajadhar v Ambikaprasad (1925) 47 All, 459, P.C , Krishn Das v.
l^athu Ram (1927) 54 1 A , 79, 49 All, 149, Benares Bank Ld v.

Han Narain (19325 59 f A , 300, 307, 54 All, 564

(y-) Benares Rank \ Han Narain (1932) 59 TA, 300 54 Ml,
564, Knshn Das v. Nathu Ram (1927) 54 I A., 79, 19 All, 149,
Hemraj v. Nathu (1935) 59 Bom, 525 FB , Jagat Narain v Malhurdns
(1928) 50 All., 969 FB , Amrej v Shambhu (1933) 55 All 1 FB ,
Ram Nath v. Chiranji Im! (1935) 57 All, 605 FB., Mrs Johnston v.
Gopalsingh ( 1931 ) 12 Lah , 546

(y*^) Partab Bahadur v. Chitpalsingh (1892) 19 I A, 33 (the

earlier stage is 11 I A , 211) , Neki Ram v Kure A I R., 1928 Lah., 526

(where the lender connives at the borrower’s extravagance) , Harnam-
Singh V. Jagir Singh A I.R. 1927 Lah , 46 (borrower, a notorious
spendthrift) .

PARA. 361.]

hunoomanpersaud’s case.

471

(3) “Their Lordships think that the lender is bound to
-enquire into the necessities foi the loan, and to satisfy himself,
-as well as he can, with reference to the parties with whom he is
dealing, that the manager is acting in the particular instance
for the benefit of the estate” (z).

(4) “But they think that if he does so enquire, and acts
honestly, the real existence of an alleged sufficient and reason-
ably credited necessity is not a condition precedent to the
validity of his charge (a), and they do not think that under
such circumstances he is bound to see to the application of the
money ”(6) .

“It is obvious that money to be secured on any estate is
likely to be obtained upon easier terms than a loan which
rests on mere personal security, and that, therefore, the mere
creation of a charge securing a proper debt, i‘annot be viewed
as improvident management; the purposes for which a loan
is wanted are^often future, as respects the actual application,
and a lender can rarely have, unless he enters on the manage-
ment, the means of controlling and directing the actual
application. Their Lordships do not think that a bona fide
creditor should suffer when he has acted honestlv and with
due caution, but is himself deceived.”

An additional rule was laid down by the Privy Council in
Krishn Das v. Nathii Ram: “Where the sale has been held
to be justified but there is no evidence as to the application
of a portion of the consideration, a presumption arises that
it has been expended for proper purposes and for the benefit
of the family” (6“). Where the transferee or lender had

(z) Lala Amarnath \. Achanhunicar (1892) 19 I A , 1%, 14 All.,
420, see Nowiuttun v. Balu Bouree 6 W R., 193; Bhudaram v. Vdai
Narain A.T.R. 1932 Pat., 12 He is not bound lo inquire into the causes
which produced the necessity. Mohabeer v. Joobha (1869) 16 W.R.,
221, Sheoraj v Niihchedee Lall (1867) 14 W R , 72.

(a) (1927) 54 I A., 79, 49 All, 149 supra, Sri Thakur Ramkrishna
V. Ratanchand <1931) 58 I.A , 173, 53 AIL, 190; Chintamani v.
Satyabadi (1922) 1 Pat., 715; Rodha Ram v. Amanhand (1923)
4 Lah., 208, Soorendro v. Nundiin (1874) 21 W.R , 196; Ratnam v.
Govindarajulii (1877) 2 Mad., 339.

(b) (1874) 21 W.R, 196 supra, Krishn Das v. Nathu Ram (1927)

54 I.A., 79, 49 All., 149; Medai Dalavoi v. Nainarthevan (1922) 27

C.W.N., 365 P.C.; Tula Ram v. Tulshi Ram (1920 ) 42 All., 559;

Raghubans v. Indrajit (1923) 45 All., 77, Johnston v. Gopalsingh
(1931) 12 Lah., 546, Khemchand v Jaswantrai A.I.R. 1934 Lah, 615;
Durgaprasad v. J ewdharisingh (1935) 62 Cal., 733, 744; Lalji \. Much-
Jcund A.I.R. 1934 Pat., 699.

(61) The principle of this case was followed and applied by the
Privy Council to the management of a family business in Sn Thakur
Ramknshna v. Ratanchand (1931) 58 I.A., 173, 53 All., 190.

(62) (1926) 54 I.A., 79, 88, 49 AIL, 149 following Masit UUah v.

Damodar Prasad (1926) 53 I.A., 204, 48 AIL, 518; Ram Sunder ▼.

Lachhmi Narain (1929) 57 M.L.J., 7 (P.C.).

472

Cases to
which
principle
applies.

ALIENATIONS. [CHAP,

the control and actual application of the money, the rule is
otherwise and in such a case he is bound to see that the
money raised was properly applied (b^) ,

The rule as to bona fide inquiry laid down in
HanoomanpersauiT s case has been embodied in section 38 of
the Transfer of Property Act. That section since the amend-
ing Act 20 of 1929 has become applicable to Hindus. It
runs thus. “‘Where anv person, authorised only under
circumstances in their nature variable to dispose of immovable
property, transfeis such property for consideration, alleging
the existence of such circumstances, they shall, as between
the transferee on the one part and the transferor and other
persons (if any) affected by the transfer on the other part,
be deemed to have existed, if the transferee, after using
reasonable care to ascertain the existence of such circum-
stances, has acted in good faith” (bM. The rule laid down in
Hanoomanpersaud^s case as to sufficiency of a reasonable
inquiry b\ the transferee of the existence of a necessity to
support an alienation applies as well m the case of simple
loans or othei transactions which are not transfers of
propel ty (6'’) .

§ 362. The principles above laid down as applicable to
the guardian of an infant (c) and the managing member of a
joint Hindu faniilv have been also applied to widows or other

(6*^) Haja ilurrouath \ Rundhirsingh (1890) 18 1 A , 1. 18 Cal.,
311, Kamasnmi ( hi'tti \ Mangaikanisu (1893) 18 Mad, 113, 118,
121 (widow)

III Maharaja of Bobbili v Zamindar of Chundi (1912) 3S
Mail, 108, J 12, il was said, ‘if section 38 of the Transhr of Properly
Act IS defined to enact a rule as to reasonable inquiry in ex( esb of what
is required by the Privy (.ouncil in Hunoomanper sand's cabc, it can-
not override the Hindu law settled by the Privy Council”. This
no longer holds good a*^ the section is now directly applicable to
Hindus In Anant Ram v. Collector of Etali (1918) i) All, 171
(P.C), section 38 of the Transfer Property Act was ac led upon
by Lord Buckniaster as to the reasonable care which the alienee must
take to ascertain the circumstances.

(6'») (1912) 35 Mad, 108 supra following Kotta Ramaswami v.
Seshamma (1881) 3 Mad, 145, Dhapo v. Ramchandra (1935) 57 All.^
374.

(c) (1874) 21 WR, 196 supra, (1917) 44 I A , 126, 39, All, 437
supra. But see Dhapo v. Ramchandra (1935) 57 AIL, 374 as to the
difference between the powers of a manager of a family and those of a
guardian of an infant.

PARAS. 362-363.] BENEFIT TO THE ESTATE.

473

women, holding the limited estate of a Hindu woman, in their
dealings with it (d), to shebaits of idols or managers or
dharmakartas of Hindu temples or religious endowments, and
to heads of mutts (e). But a distinction between the
managing member of a Hindu family and the shebait of a
temple or the dharmakarta of a Hindu religious endowment
exists and is real. The analogy between the manager
of a joint family and the manager of a religious endowment
which has been recognised in many cases seems to be neither
complete nor fruitful. Property devoted to religious
purposes is extra commercium and is, as a rule, inalienable.
Ordinary joint family property is fully alienable if all the
coparceners are adults and consent to the alienation. And
the positions of a trustee and of a manager are not exactly
identical. The question of necessity or benefit must necessarily
vary not only m degree but d( cording to circumstances m the
two cases.

§ 363. Ever since the judgment in Hunooman PersaucTs
case, the terms ‘’necessity’ and ‘benefit to the estate’ have been
used side by side, and the Courts are not agreed as to the
meaning to be given to the expression ‘beneht to the estate’.
Anything which is a necessity to the estate will of course be
of benefit to it. But the term ‘benefit’ would seem to import
something positive done to enlarge or improve the estate, not
a merely negative act such as the discharge of debts or the
averting of disaster. In fact, almost all the decided cases
relate to acts which were clearly dictated by necessity, to
secure the preservation of the estate. The latest authoritative
pronouncement of the Privy Council on the subject is thus
expressed by Lord Atkinson in Palaniappa v. Devsikamony :
“No indication is to be found .... as to what is, in this
connection, the precise nature of the things to be included
under the description ‘benefit to the estate’. It is impossible,
their Lordships think, to give a precise definition of it

“Benefit of
the estate”.
Its meaning.

{d) Kameswar v. Run Bahadur (1881) 8 I.A., 8, 6 Cal., 843,
847, Amarnath v. Achan Kuar (1892) 19 I.A., 196, 14 All, 420, Make-
shar Baksh v. Ratansingh (1896) 23 I A., 57, 23 Cal., 766, Bonornali
V. Jagatchandra (1905) 32 I A., 80, 32 Cal., 669; Anant Ram v Collector
»f Etah (1918) 40 All, 171, 175 P.C.

(e) Prosunno Kurnari v. Golabchand (1875) 2 I. A., 145. Konwar
Doorganath v. Ramchunder (1877) 4 I. A., 52, 63, 2 Cal, 341;

Abhiram Goswami v. Shyamacharan Nandi (1909) 36 I. A., 148, 36
Cal., 1003; Palaniappa v. Devasikamony (1917) 44 I. A., 147, 40 Mad.,
709; Murugesam Pillai v. Manickavasaka (1917) 44 I.A., 98, 40 Mad.,
402; Daivasikhamani v. Periyananchetty (1936) 63 I. A., 261, 274-275,
59 Mad., 809. As to the powers of the manager for a lunatic, see
Goureenath v. Collector of Monghyr (1867) 7 W.R., 5; Kanti Chunder
▼. Bisheswar (1898) 25 Cal., 585.

474

ALIENATIONS.

[chap. X,

applicable to all cases, and they do not attempt to do so.
The preservation, however, of the estate from extinction, the
defence against hostile litigation affecting it, the protection of
it or portions of it from injury or deterioration by inundation,
these and such like things would obviously be benefits. The
difficulty IS to draw the line as to what are, in this connection,
to be taken as benefits and what not”. It is obvious that all the
acts enumerated in this passage would be dictated by necessity
in the strict sense. Later on, when their Lordships come to
deal with a suggested benefit to the estate it is only to dismiss
it as unwarranted. ‘‘No authority has been cited for giving
an> countenance to the notion that a shebait is entitled to sell
debottar lands solely for the purpose of so investing the price
of It as to bring in an income larger than that derived from
the probably safer and ( ertainly more stable property, the
debottar land itself ” The case referred to the latitude of
alienation peiniissible to a shebait in charge oi^debottar lands.
But It wa^i argued and decided on the footing that the same
princijiles were applicable as those which regulate the rights
of alienation possessed by the manager of joint family
property ( / ) .

Conflict of

judicial

•pinion

Subsequent to this decision, as to what is meant by the
e\pres«-ion ‘lor the benefit of the estate’, there has been a
conflict of judicial opinion Acioiding to one view, unless
the transaction is of a defensive character in the sense that it
js calculated to proU^ct the estate from threatened danger or
destruction, it is not for the benefit of the estate (g).
According to the othei view, it is competent to the managing
member to alienate ancestral property when the transaction
IS for the positive benefit of the family and is such as a
prudent ownei would carry out with the knowledge available
to him at the time ih) Differing from the Allahabad High

(/I (1917) 44 TA, 117, 40 Mad, 709 (a case which dealt with
the validity of a permanent lease given by the dharmakarta or manager
<if a temple, of land'^ comprised in a religious endowment) See also
on ihi^ point, Krishna Chandra v Ratan Ram (1916) 23 CLJ, 432;
Rani Bilas Singh v Ramyad Singh (1920) 5 PLJ, 622

(g) Doraisanii Ayyar v. Venkatarama (1921) 13 MLW., 618;

Vii^hnu V. Ramchandra (1923) 25 Bom LR, 508, AIR. 1923 Bom.,
453, \ataraja \ Lakshmana AIR, 1937 Mad., 195, Bhagwan Das v.
Mahadeo (1923) 45 All, 390, Shankar v Bechu Ram (1925) 47 All.,
381, Inspector Singh \ Kharak Singh (1928) 50 All., 776.

(h) In re Knshnaswami Doss Reddi (1912) M.W N , 167, Ganesha

V Amntasami (1918) M W N., 892, Sellappa v Subban [1937] Mad.,
906, Jagat Narain v Mathura Das (1928) 50 All, 969 FB., dissenting
from Bhagwan Das v. Mahadeo (1923) 45 AIL, 390; Shankar Sakai

V Bechu Ram (1925) 47 All., 381 and Inspector Singh v. Kharak Singh

PAKAS. 363-365.]

LEGAL NE;CESSITY.

475

Court, a Full Bench of the Bombay High Court has taken
an intermediate view and holds that the manager of a minor’s
estate under the Hindu law is not entitled to sell the minor’s
property merely for the purpose of enhancing the value of
that estate, or for increasing the minor’s income, but that it
is not correct to say that no transaction can be for the benefit
of the minor which is not of a character to protect or preserve
his property (i).

§ 364. Necessity is not to be understood in the sense of
what is absolutely indispensable but what according to the
notions of a Hindu family would be regarded as reasonable
and proper (;). On the whole it would seem that a managing
member has authority to do all acts which are clearly reason-
able and proper for the realisation, protection or benefit of
the joint estate and for the protection and support of
all the members of the joint family as well as what is
required for indispensable acts of dutyf;^). The difficulty
is not so much one of principle, as of its application
to the protean nature of circumstances as they present
themselves to different minds. It is perfectly clear that the
preservation of the estate from extinction, the defence against
hostile litigation affecting it, the protection of it or portions
from injury or deterioration by inundation are circumstances
which would justify an alienation, whether they are regarded
fiom the point of view of legal necessity or benefit to the
■estate (f).

§ 365. Hunooman Persaud’s case was one of mortgage
and not of sale. But it is evident that the same principles
would apply in either case (k). A prudent manager should,
of course, where it is possible, pay off a debt from savings
rather than by a sale of part of the estate (/), and it might be

(1928 > 50 AIL, 776; Amrejsingh v Shambhusingh (1933) 55 AIL, 1
F.B.; Markandey Singh v Hadansingh AIR. 1933 All, 568; Sohan/al
V. Zorawarsmgh A I.R. 1937 All, 219; Shaikh Jan v. Bikoo (1928) 7
Pat., 798; Kalla Ram v. Gobardhandas A.I.R. 1930 Lah., 679; Rap
:kingh V. Seth Kishanlal A.I.R. 1935 All, 299; Ram Nath v. Chiranjilal
(1935) 57 AIL, 605 F.B.

(i) Hemraj v. Nathu (1935) 59 Bom., 525, 543, F.B.

(/) Kamesvara Sastn v. Veeracharlu (1911) 34 Mad., 422; Vembu
V. Srinivasa (1912) 23 M L.J., 638 where the scope of necessity is
discussed.

ip) Compare Section 36 of the Indian Trusts Act, 1882.

ip) Falanwppa v. Devasikamony (1917) 44 I.A., 147, 40 Mad.,
709.

ik) Krishn Das v. Nathu Ram (1927) 54 I.A., 79, 84, 49 AIL, 149,
156; Tulsidas v. Vaghela Raising ji (1933) 57 Bom., 40, 56; Rama-
lingam PilUd v. Muthayyan (1914) 26 M.LJ., 528.

(i) Bukshun V. Doolhin 3 B.L.R. (A.C.J.), 423, 12 W.R., 337,

Legal

necessity.

Necessity

justifying

sale.

476

LEGAL NECESSITY.

[chap. I,

more prudent to raise money by mortgage than by sale. On
the other hand, where the mortgage was at high interest, it
might be more prudent to sell than to renew (m). In every
case the question is one of fact, whether the transaction was^
one which a prudent owner, acting for his own benefit, would
enter into.

A sale or mortgage of family property by the managing
member is valid on the ground of justifying family necessity
where it is (1) for the payment of decree debts and other
debts binding on the family (n) ; (2) to pay off the claims
of Government on account of land revenue, cesses, taxes and
othei dues (o) ; (3) for the payment of rents due to the land-
lord or for payment of decrees for arrears of rent
obtained by the landlord against the family (o^) ; (4)
for the maintenance of the members of the family (p) ;
(5) foi the purpose of defraying the expenses of marri-
ages of coparceners (q) and of daughters born in the
family (r) , (6) foi the expenses of the necessary family

(m) Muthoora v Bootun 13 WR, 30

in) Gharihullah v kholak Singh (1903) 30 I A , 105, 25 All, 407,
Mudit V Rang/al (1902) 29 Cal, 797.

io) 30 I A, 105 25 All, 407 mpra, V cnkataraninn ^ Sivaguru-
nntha AIR 1933 Mad, 639, Sagarsingh v Mathuraprasad AIR. 1925
Oiidh , 750, Gayaprasad Tiwar v Ram Pal Meer (1915) 13 A.LJ, 246,

(oi) Snnwhan Jha v Bnj Beharv (1909) 36 ( al , 753.

ip) Bishambur \ Sudasheeb (1864) 1 WR, 96, (1903) 30 T A ,
105, 25 All, 407, 415 supra. Seem v Angamuthu (1912) 13 IC, 802,
0912) 1 MWN, 99, Srinivasa Iyengar v Alanielu Animal AIR
1927 Mad, 715, Seethiah v. Mutyalu A I.R 1931 Mad, 106, Babaji

V Krishnaji (1878) 2 Bom, 666, Mt Raj Kiier v Dindayal A.I R,
1931 Oudh , 325, bee also Makundi v. Sarabsukh (1884) 6 All., 417,
421

iq) Kamesitara Sastri v. Veeracharlu (1911) 34 Mad, 422;

Gopalakrishnam v \ enhatanarasa (1914) 37 Mad, 271 FB overruling
Govindarazulu \ Devarabotla (1904) 27 Mad, 206, Bhagiratln t.
Jokhu Ram (1910) 32 All, 575, Sundrabai v. Shivnarayana (1908)
32 Bom, 81, Debilal Sah v Nand Kishore Gir (1922) 1 Pat, 266
But see Onkar v. Kisan Singh AIR. 1930 Nag , 282 (fourth marriage
of coparcener no legal necessity)

(r) Lalla Canput \ Toorun Koonwar (1871) 16 W R , 52, Chhoti
ram v Narayandas (1887) 11 Bom, 605, Vaikuntam v Kallapiran
(1900) 23 Mail, 512, Vaikuntam v. Kallapiran (1903) 26 Mad, 497;
Ranganaiki v Ramanuja (1912) 35 Mad, 728 (1912) 1 MWN.,
99 supra. Ram Charan v Mihin Lai (1914) 36 All, 158, Prabh Dayal

V Ralla Ram AIR 1930 Lah , 672 In Ram Jas Agarwala v. Chand
Mandal [19371 2 Cal, 764, it was held that there is no legal necessity
justifying alienation of properties to meet the expenses of a marriage
in contravention of the provisions of the Child Marriage Restraint
Act, 1929, but a decree for money was given against the borrower. The
decision would seem to be right as there was no necessity for the
child’s marriage, having regard to the Act, at the time of the alienation^
though the marriage itself is neither illegal nor invalid.

PARAS. 365-366.]

LEGAL NECESSITY.

477

ceremonies including funeral and annual sradhs ( 5 ) ; (7)
for the expenses of necessary litigation in connection with
the recovery or protection of the joint estate {t) ; (8) for
the expenses of defending the head of the family (u) or any
other member against a serious criminal charge (v ) ; (9) for
the purpose of carrying on an ancestral trade or business (w) ;
(10) to raise money to avert a sale or destruction of the
whole or any part of the family property; and (11) for the
expenses of necessary repairs to the family properties and
for the protection of fields and lands belonging to the family
from floods (ac). But any enumeration of necessary purposes
cannot in the nature of things be exhaustive.

§ 366. A legal necessity justifying a sale or mortgage of
family property arises only where the purposes abovemen-
tioned or similar purposes cannot be met out of the income of
the family or the cash on hand (y). The purchaser or mort-
gagee is bound*lo make a bona fide inquiry as to whether the
debt for which the mortgage or sale is executed could be met
from other sources; for the person who deals with the manager
•of a joint family property has to consider the propriety and
necessity of the transaction in which he is engaged, not merely
the propriety and necessity of paying the debt which is the
alleged reason for the transaction. If the debt is improper
01 unnecessary, and known to be so by the lender, the tran-
saction is, of course, invalid. If the payment of the debt is
proper and necessary, the transaction will still be invalid,
unless the lender has reasonable ground for supposing that
it cannot be met without his assistance. There should be

(v) JaiUg Ganpiit v. Tooriin Koonwar (1871) 16 WR, 52; Saravana
V. MiUtnyi (1871) 6 Mad. H C., 371; Nathuram v. Shoma (1890) 14
Bom, 562; Bajrangi v. Padarath A.I.R. 1930 All., 504, following
Churaman v. Gopi (1910) 37 Cal., 1,

(0 Miller V. Runganath (1886) 12 Clal., 389, 400; Kaloo Singh v.
Sunderabai A.I.R. 1926 Nag., 449.

(m) Beni Ram v. Manungh (1912) 34 All., 4; Ramalingam v.
Muthayyan (1914) 26 M.L.J., 528, Hanumat v. Sonadhari (1919)
4 P.LJ, 653; Dhanukdhari v. Rambinch (1922) 1 Pat., 171, dissent-
ing from Nathii v. Dindayal (1917) 2 P.LJ., 166; Said Ahmed v.
Raja Mahesh Pratab (1933) 8 Luck., 40, A.I.R. 1932 Oudh , 255.

(v) Ram Raghubar v. Dip Narain (1923) 45 All, 311, Murli v.
Bindeswari A.I.R. 1933 Pat., 708, Sitla Bakhshsingh v. Mt, Ram Raji
A.I.R. 1933 Oudh., 289; Maruthappan v. Niraikulathan [1937] Mad.,
943 (debt incurred to assist prosecution for the murder of a member
of the joint family not binding).

(tv) Ram Krishna v. Rattanchand (1931) 58 I. A., 173, 53 All., 190;
Ram Prasad v. Bishambarnath A.I.R. 1936 All., 607.

(x) Salig Ram v. Mohanlal A.I.R. 1925 Lah., 407.

(y) See cases cited in note (a) to §650, and also next note.

478

ALIENATIONS.

[chap. X,

Manager's

discretion.

some connection between the money advanced by the transferee
and the necessity that is proved. It may be that the slightest
enquiry would have shown that there were other funds belong-
ing to the joint estate which could have been used for the
purposes or what is not an uncommon case, the manager may
be raising sums from other persons purporting to raise them
for the same purpose (y^j. The caprice or extravagance of
the manager will be relevant to show either that the object
of the tiansaction was an improper one, or that the necessity
foi It was non-existent (z).

Necessity however does not mean actual compulsion but
the kind of pressure which the law recognises as serious and
sufficient (a). Accordingly where there aie binding debts,
which cannot otherwise be met, a sale will be justifiable to
pay them off, even though there was no actual piessure at the
time in the shape of suits by the creditors (6) . For the
manager is not bound, and indeed ought not, to put the estate
to the expense ol actions A jottiori^ of couise, such dealings^
will be justified where there are decrees in existeiiic, whether,
ex parte or otherwise, which could at anv moment be enforced
against the property (c) .

Once the legal necessity is made out it is cntiielv a matter
foi the decision of the managing member whethei the money
should be laised by wav of moitgage or salefd). It is a
question equally for the manager in the case of an ancestral
family business to decide whether it would be better to raise
more money by sale or mortgage or to close down the
business (c)

fyi) Maheshar Baksh Singh v Ratan Singh (1896) 23 lA, 57,
23 Cal, 766, Lain 4niarnath v Achan Kuar (1892) 19 I \ , 196, 14 All,
420, per Coiiils-Trolter, J , in Peddayya v V cnkatakrishna) ya (1916) 1
M W N , 163, 166 See Sathappan Ambalam v Vadivelu AIR 1928
Mdcl , 450, Babhiriiddin v Mahadeo AIR, 1924, Oudli , 306

(z) Damodhur v Birja Mohapattur SD of 1858, 802, Bapusmgh
V Behanlal (1908 ) 30 All, 156, Neki Ram v. Kure AIR 1928 Lah ,
526, Harnamsingh v Jagirsingh AIR 1927 Lah, 46 (borrower a
notorious spendthrift).

(fl) Ramsumran v Shyamkumari (1922) 49 I A , 342, 346, 1 Pat.,
741; Santosh Kumar Miillick v. Ganeshchundra (1926) 31 C W.N , 65,

(b) Kaihur v Roopsingh (1871) 3 NW.P, 4, Vembu Iyer v.
Srinivasa Iyengar (1912) 23 M.L J., 638.

(c) Purmessur v Mt. Goolbee (1869) 11 W R., 446, Sheoraj v.
Nukchedee (1870) 14 WR, 72.

id) Niamat Rai v Din Dayal (1927) 54 I A., 211, 217, 8 Lah, 597;
Ambalavana v. Gown A.I R. 1936 Mad., 871.

(e) Niamat Rai v. Din Dayal (1928) 54 I A., 211, 217, 8 Lah., 597.

PARA. 367.]

PARTIAL NECESSITY.

479

§ 367. Where the necessity for a particular sale or
mortgage is only partial, in other words, where the money
required to meet the necessary purposes is less than the amount
sought to be raised by the sale or mortgage, the true question
is whether the sale itself is one which would be justified by
legal necessity. The reason for this is that it is not always
possible for the managing member to sell just that share of
the family property which will bring in the precise sum which
is wanted to clear the debts which are binding ( / ) . But in a
case where the circumstances only disclose a partial necessity,
the sale will however be valid only where the purchaser acts
in good faith and after due inquiry and is able to show that
the sale itself is justified by legal necessity though he is undci
no obligation to inquire into the application of any surplusig).
Where the manager decides to raise money by a mortgage
of family property, he can borrow the precise amount required
for a family purpose and the other coparceners will not
therefore be Ifable for any sum borrowed on the security of
the family property in excess of the necessity (h ) , and the
mortgage will stand good only to the extent of the necessity
proved.

if) Krishn Das v. Nathuram (1927) 54 I. A., 79, 84, 49 All., 149

(Rs. 500 out of 3,500 not foi ne< es-,ity -sdlo upheld), Nianiat Rai v.
Din Dayal (1927) 54 1 A., 211, 8 Lah., 597 (Rs. 5,100 out of 43,500
not for necessity — sale upheld) ; Gaurishanker v. Jiwan Singh (1927)
53 786, P.C., 30 Bom. L R., 64 (Rs. 500 out of Rs. 4,000 not

proved — sale upheld) ; Medai Dalavoi v. Naina r Thevan (1922) 27
C.W N., 365 P C. (Rs. 712 out of Rs 5,300 not for necessity — sale upheld) ;
Suraj Bhan Singh v Sah Chain Sukh A.I.R. 1927 P.C. 244 (Rs. 2,000 out
of Rs 19,000 not proved -sale upheld) , Masit IJllah v. Damodarprasad
(1926) 53 LA, 204, 4S All, 518 (Rs. 2,000 out of Rs. 18,400 not for
necessity — sale upheld) ; Jagannath v. Srinath (1934) 61 I.A., 150,
56 All., 123 reversing (1931) 52 All., 391; Murhi v. Ghammar (1929)
51 All, 61 (Rs. 433 out of Rs. 1,400 not proved); Ram Sunder v.
Lachhmi (1929) 51 All, 430 P.C, A.I.R. 1929 PC, 143 (Rs. 3,023
out of Rs. 10,767 not proved — sale upheld) , Shyam Lai v. Badri Prasad
(1929) 51 All., 1039 (Rs. 475 out of Rs. 1,000 not proved — sale
upheld) ; Achutanand v. Surjanarain (1926) 5 Pat., 746 (Rs. 200
out of Rs. 750 not proved, sale upheld) ; Hitendranarain v. Sukdeb-
prasad (1929) 8 Pat., 558 (Rs. 637 out of Rs. 6,400 not proved — sale
upheld); Kamta Prasad v. Durga Dat A.I.R. 1935 Pat., 368; but see
Juthan Ram v. Ramun Ram A.I.R. 1938 Pat., 263; Manki Kaur v.
Hunsraj A.I.R. 1938 Pat., 301.

ig) (1927) 54 I A., 79, 88 supra; Nagappa v. Brahadambal (1936)
62 I.A., 70, 58 Mad., 350.

(h) Benares Bank Ld. v. Harinarain (1932) 59 I. A., 300, 54 All.,
564; Anantram v. Collr, of Etah (1918) 40 All., 171 P.C.; Thakur Jai
Indra v. Khairati Lai (1929) 4 Luck., 107, A.I.R. 1928 Oudh., 4^;
Dwarka Ram v. Bakshi Parnaw (1935) 14 Pat., 595. See Durga Prasad
▼. Jewdhari Singh (1935) 62 Cal., 733 (where the point was not
decided). See also Lachuman Prasad v. Sarnamsingh (1917) 44 I. A.,
163, 39 AIL, 500; Ramcharan v. Bhagwan (1926) 53 I A., 142, 48
All., 443.

Partial

necessity.

480

INSTANCES OF BENEFIT.

[chap. X,

Illustrations
o( benefit.

An alienation which is clearly for benefit of the family, if
within reasonable limits, will be valid apart from any
question of necessity (h^) .

§ 368. Illustrations of transactions for the benefit of the
estate have been given by Beaumont, C.J., in the Full Bench
case of Hemraj v. Nathu (t) : (1) the sale for adequate price
of land which could not be conveniently cultivated with other
property of the family, directly coupled with the investment
of the sale proceeds in the purchase of lands which could
be so conveniently cultivated (/) ; (2) the sale of lands in
order to raise money to secure irrigation or permanent
improvement of other land of the family; (3) a beneficial
exchange (A), or the sale of a house in a dilapidated condi-
tion(/). Reclamation of lands or planting of fruit tiees or
other agricultural improvements will of course, within limits,
be of benefit to the family. So too it would seem that any
insurance effected against loss or destruction by. fire in respect
of family property or houses or goods employed in family
trade will be of benefit to the family. A mortgage may
validly be made for raising money in order to make
additions and improvements to the family house within
reasonable limits (m). A Hindu father, it has been held,
cannot sell family lands merely because they are
situated some miles away and he proposes to purchase
lands nearer home(n). So too it has bceen held that a
managing member has no right to sell the whole or part of

(/i^) Per Siindara Aiyar J. in Vembii v Srinivasa (1912) 23
MLJ, 638, 642, Krishna Chandra Chowdhiiry v Ratan Ram Pal
(1915) 20 CWN, 615, Rarn Nath v Chiranji Lai (1934) 57 All, 605
FB ; Chhotty Lai v. Dalip Narain (1938) 17 Pat, 386

(0 (1935) 59 Bom., .525 FB.

(/) (1935) 59 Bom, 525, 544 FB supra, Jadosingh v Nathusingh
(1926) 48 All , .592 (sale of inconveniently situated, incumbered and
unprofitable property and the purchase in its stead of property which
was undeniably a sound investment) , Markandcy v. Badansingh
A.I.R. 1933 All, 568 (sale of scattered lands of inferior quality and
investment of price in purchase of better lands) ; sale of unproductive
land and investment of proceeds in family business is a benefit to
the estate. Jagmohan v. Prag Ahir (1925) 47 All, 452, see also
Jagat Narain v Mathuradas (1928) 50 All, 969 FB, Laljisingh v.
Muchkund A.I.R. 1934 Pat, 699, but see Ram Bilas v Ramyad (1920)
5 PLJ, 622, Manna Lai v Karusingh (1919) 39 CLJ, 256, A.I.R.
1919 P.C., 108, 13 M.L.W., 652

(A:) Hemraj v. Nathu (1935) 59 Bom., 525, 544 FB.

(/) Nagindas v. Mahomed Yusuf (1922) 46 Bom , 312.

im) Ratnam v. Govindarajulu (1880) 2 Mad., 339.

in) Ganesa v. Amirthasami (1918) M.W.N., 892; Mayakone v.
Periaswami (1937) 2 MLJ, 622, but see Beni Madho v. Chunder-
prasad (1924) 3 Pat., 451; Shaikh Jan v. Bikoo (1928) 7 Pat., 798;

PARA. 368 .]

AUENATIONS

48 ]

the joint estate for the purpose of so investing it as to bring
in a larger income (o). Nor can a manager start the business
of a rice mill with a view to giving more income to the
family (p). This would however stand on a different footing
as it involves the starting of a new business with all its risks.
The sale of an inconvenient and expensive property for an
advantageous price would be for the benefit of the family.
The expression will certainly exclude cases of speculative
developments of family estates {q). As was said by the
Patna High Court, actual compelling necessity is not the sole
test of the validity of an alienation by the manager. When
it can be shown that the transaction was one which was clearly
beneficial to the interest of the family as a whole, the transac-
tion is valid (/).

Narayan Rao v. Alulchand A.I R 1933 Nag., 109. Even where the
family land is sold for the purpose of purchasing other land, Kumara*
swdmi Sastn J. ^ays: “The sale or mortgage of ancestral lands to
purchase other lands can only he justified if there was clear benefit
to the family as m Re Krishnaswaini Doss Reddi (1912) M.W N , 167;
Subramania Nadan v. Ramabwami Nadan (1913) 25 M.L.J., 563;
Adikesavan v. Gurunatha (1917) M W N., 171, 40 Mad, 338 and
having regard to the ease with which such recitals can be made by

improvident father m order to raise money, I think Courts ought
to be slow to find necessity unless on clear proof that the transaction
was one manifestly for the benefit of the family”: Ganesa v. Amirtha-
samt (1918) MWN., 892, 895; Subramania Chetty v. Chidambara
(1921) 41 M.LJ., 459; Lajja Ram v. Abdul Rahim A.I.R. 1928 Lah.,
437.

(o) Palaniappa v. Devasikhaniony (1917) 44 I. A , 147, 40 Mad.,
709, 719; Vishnu v. Ramachandra A.I.R. 1923 Bom., 453; Hemraj v.
Nathu (1935) 59 Bom, 525 F.B.

(p) Nataraja v. Lakshmana A.I R. 1937 Mad., 195.

iq) Krishnachandra Choudhuri v. Ramratan Pal (1915) 20 C.W.N.,
•645 (where the sale of an item was upheld) ; hhani Dasi v. Ganesh-
chandra Rakshit (1918) 23 C.W.N , 858, 860.

(r) Ram Bilas v. Ramyad (1920) 5 P.L.J., 622; Sheik Jan v.
Bhikoo (1928) 7 Pat., 798; Chhotey Lai v. Dalip Narain (1938)
17 Pat., 386. An alienation solely for the purpose of pre-
empting another property is not a benefit, Shankar v. Bechii (1925)
47 All, 381; Kishen Sahai v. Raghunath (1929) 51 All., 473, Amrej
V. Shambu (1933) 55 All., 1 F.B,; but see Dhara Singh v. Bharatsingh
A.I.R. 1936 All., 613 ; Sohanlal v. Zorawarsingh A.I R. 1937 All , 219 ;
nor a deed of exchange for defeating a claim of pre-emption, Balzor
V. Raghunandan (1932) 54 All., 85. An alienation for providing funds
to carry on a speculative litigation is not for the benefit of the estate;
Bhagwan v, Mahadeo (1923) 45 All., 390. An alienation for re-
purchasing or acquit ing mortgage rights in the estate of a separated
brother is not a benefit: Hans Raj v. Khushalsingh (1933) 14 Lah.,
162. To avert the possibility of a stranger coming into the joint family
property by his purchase at a Court auction is not a legal necessity:
Sabhachand v. Sambhoo A.I.R., 1937 Bom., 182. Subscribing to a
^hit fund is no legal necessity: Natesa v. Sahasranama (1927) 53
M.L.J., 550. An alienation to recover property sold for arrears of road
cess is not a benefit: Snmohan Jha v. Brijbehary (1909) 36 Cal., 753.

33

482

INDISPENSABLE DUTIES.

[chap. X,

Indispensable

duties.

§ 369. The third ground upon which the authority of
the managing membei, whether a father or other coparcener^
to make an alienation of family property rests, is where
indispensable duties such as the obsequies of the father and
the like require it (5). The Mitakshara indeed confines it
to cases wheie indispensable duties make the alienation un«
avoidable. The phrase “and the like” in the Mitakshara I,
1 ^ 29 lefers to annual sraddlias, the ceremony of U panayanam,
the marriage of toparceneis and of girls born in the family
and all other leligious ceremonies (i* ) Alienations for the
purpose of meeting the expenses of or discharging the debts
contracted for these ceremonies would be justified on the
ground of family necessity In addition, it has been held that
gifts for pious purposes aie, within reasonable limits, valid
when made by the fathei 01 other manager The head of the
family, it has been held, is competent to alienate a small
portion of the joint property, by way of a provision for a
permanent shrine for a family idol, or to an ^dol in a public
temple (w). In Gangi Reddi v. Tarnmi Reddi, the Judicial
Committee held that a dedication of a portion of the family
property for the purpose of a religious charity (in this case,
it was a choultry — satram or Dharmasala) may be validly
made by the karta without the consent of the other members,
if the property allotted be small as compared with the total
means of the family “But the appropriation or alienation'
must be made by the manager by an act inter vivos, and must
not be an alienation de futuro by will” (t^). But the distinction
IS real between what may be regarded from the Hindu point

(s) Mil, I, 1, 28, 29 The above is the explanation of the
Mitakshara on the text of Bnhaspati referring to ‘pious purposes’.

(t) I ai hunt am v Kallapiran (1903) 26 Mad, 497, {Gnhapravesam
ceremony and Rithiisanthi ceremony which are auxiliary to the mar-
riage) , Churanian v Gopee (1910) 37 Cal, 1 {Ganna ceremony),

(u) Gopalchand v. Babu Kuntvar (1843 ) 5 SDA, 24, Raghunatk
V. Govind (1886) 8 All, 76, Sri Thakurji v Nanda Ahir (1921)
43 All, 560, Ramahnga v. Sivachidambara (1919) 42 Mad, 440;
Audyappa v Muthulakshnu ATR 1925 Mad, 1281, Karam v.
Surendar AIR 1931 Lah , 289 But a gift to a worshipper or archaka
ot an idol is invalid; Kalu v. Barm (1895) 19 Bom., 803.

iv) (1927) 54 I A., 136, 140, 50 Mad., 421, 425; Laltaprasad v.
Sri Mahadeoji (1920 ) 42 All, 461 Neither the text of Bnhaspati
nor the Mitakshara draws any distinction between a donation and a
mortgage or sale of family property made by the father or other
managing member Just as a sale or mortgage prevents the operation of
survivorship, when authorised, a gift by will which is only a gift to
take effect upon the death of the testator for an authorised purpose
would seem to be valid. See Amarchandra v. Saradamayee Debt (1930)
57 Cal , 39 (Father’s direction to his son to make a gift to his daughter
was held to be valid).

PARAS. 369-370.] GIFTS OF AFFECTION.

4S3

of view as a customary obligatory duty and a duty which^
however meritorious, in purely optional or personal {w).

§ 370. Gifts to brides on occasions of marriage are very
common and various Hindu texts impose a moral obligation
on the father or other relatives to make them (x ) . These gifts
usually take the form of jewels or other movable property.
It has been held that a gift, by a father to his daughter or
to her husband for the benefit of both on the occasion of her
marriage, of a small portion of ancestral immovable propeity
is valid (y). As Subrahmanya Aiyar, J., says, ‘a gift of a
small extent of land (bhudanani) on such an occasion is a
customary indispensable duty where the family can afford
it’ (z). Even after marriage, a gift can be made to a
daughter by way of marriage portion either by her father or
after him, by her brother (a). In Churaman Sahu v. Gopi
Sahu, the Calcutta High Court held that it would be competent
to a managing member, as it is to a widow, to make a valid
gift of a reasonable portion of immovable property of the
family to a daughter born in the family on the occasion of
her gowna ceremony (6). The Bombay High Court has held
that a father cannot make a gift even of a small portion of
joint family immovable property to his daughter, though she
was looking after him in his old days (c) . This would be
right if it merely rested on the view that a gift of affection
(prasadadana) which is mentioned in the Mitakshara I, i, 27,
could only be made of ancestral movable property and not
of ancestral immovable property. But where the gift is in
discharge of the moral obligation to provide a marriage
portion as in the Madras cases, it would come under the
Mitakshara I, 1, 29, as a gift in discharge of an indispensable

Gift through
affection.

(w) Rathnam v. Sivasubramania (1893) 16 Mad., 353 (The gift
of a silver vehicle to a pagoda was held invalid both on the ground
that It was not an indispensable duty and on the ground that the gift
was by will).

(:*:) Manu, IX, 194, Narada, XIII, 8; Yajn , II, 143, 144; Vishnu,
XVII, 18: Mit., II, XI, 4 5.

(y) Ramastvami Aiyar v. V engiduswami Aiyar (1899) 22 Mad.,
113, Kiidutamma v. Narasimha (1907) 17 MX.J., 528; Sundararamayya
V. Sitamma (1912) 35 Mad., 628, 21 M.L.J., 695; for the judgment of
Krishnaswami Aiyar J. in that case, see 21 M.L.J., 701; Suhba Naicker,
In re (1915) 2 M.L.W., 754; Sithamahalakshmamma v. Kotayya (19361
71 M.LJ., 259.

(z) (1899) 22 Mad., 113, mpra; Vettor Ammal v. Poochi Ammal
(1912) 22 M.L.J., 321.

(fl) (1912) 22 M.L.J., 321 supra.

(6) (1910) 37 Cal., 1. See Appx. I.

(c) hnnappa Mahadevappa v. Chimmava (1935) 59 Bom., 4(59.

484

BURDEN OF PROOF.

[chap. X,

Burden ot
proof.

duty. In Ramalinga Annavi v. Narayana, the Judicial Com-
mittee evidently regarded the gift of a small share of
immovable property to a daughter as within the authority of
a karta (d).

§ 371. Where a sale or mortgage is made by a father,
the burden of proof is upon the alienee to show that the
alienation is either for an antecedent debt or was made for
legal necessity or the benefit of the family. Where it is proved
that the alienation is for an antecedent debt, it is for the
sons to show that the debt was contracted to the knowledge of
the lender for immoral or illegal purposes (e), for it is
strictly not a case of alienation by a managing member for
a legal necessity or for the benefit of the estate.

Where an alienation of joint family property is made by
a manager, the burden of proof lies upon the person who
claims the benefit of the alienation to establish one of two
things: (1) the transaction was m point of f^ct jusified by
legal necessity or was for the benefit of the joint estate or
(2) he had made reasonable and bona fide inquiry as to the
existence of the necessity and satisfied himself that the
manager was acting for the benefit of the estate. For, a lender
of money may reasonably be expected to prove the circum-
stances connected with his own particular loan, but cannot
reasonably be expected to know, or come prepared with proof
of, the antecedent economy and good conduct of the owner
of the joint family estate. The presumption proper to be
made will vary with circumstances, and must be regulated by,
and dependent on them. Thus, where the mortgagee himself,
with whom the transaction took place, is setting up a charge
in his favour made by one whose title to alienate he necessarily
knew to be limited and qualified, he may be reasonably expect-
ed to allege and prove facts presumably better known to him
than to the infant heir, namely, those facts which embody
the representations made to him of the alleged needs of the
estate, and the motives influencing his immediate loan(e^). It
is obvious, howwer, that it might be unreasonable to require
such proof from one not an original party, after a lapse of
time and enjoyment, and apparent acquiescence (/). Where

(d) Ramalinga Annavi v. Narayana (1922) 49 I A , 168, 173, 45
Mad., 489.

(e) Satnarain v. Beharilal (1924) 52 I.A , 22, 30, 6 Lah., 1.

(el) The representations by the manager accompanying the loan
are part of the res gestae and evidence against those whom the
manager represents.

(/) Murugesam Pillai v. Manickavasaka (1917) 44 I. A., 98, 40 Mad.,
402; Hunoomanpersaud's case (1856) 6 M.I.A., 393.

PARAS. 371-372.]

RECITALS,

4SS

a new security is substituted for an older one, or where the
consideration for the older one was an old precedent debt of
an ancestor not previously questioned, a presumption in favour
of the validity of the transaction would, after a lapse of time
and in proper cases be reasonable (g) .

§ 372. Recitals in mortgages or deeds of sale with regard Recitals of
to the existence of necessity for an alienation have never been “®®c88ity.
treated as evidence by themselves of the fact. To substan-
tiate the allegation, there must be some evidence

aliunde {h) . As Lord Buckmaster observed: “It is
well established that such recitals cannot by them-
selves be relied upon for the purpose of proving the
assertions of fact which they contain. Indeed it is obvious
that if such proof were permitted the rights of reversioners
could always be defeated by the insertion of carefully pre-
pared recitals. Under ordinary circumstances and apart from
statute, recitals in deeds can only be evidence as between the
parties to the conveyance and those who claim under
them” (i).

(g) Hunoomanpersaud v. Mt, Bhabooee (1856) 6 M.LA., 393, 418-
420, Tandavaraya v. VaLli (1863) 1 M.H.C, 98; Vadali v. Manda
(1865) 2 407; Saravana v. Muttayi (1871) 6 371;

LalLa Biinseedkur v. Koonwur Bindeserree (1866) 10 M.1.A,, 454,
471, Maheshwar Syud Tasoowar v. Koonj Beharee (1870) 3 N.-W.P.,
8; Chowdhry v. Brojo Soondur (1872) 18 W.R., 77; Sikher Chund v.
Dalputty (1880) 5 Cal., 363; Makundi v. Sarabsukh (1884) 6 AIL,
417; Lai Singh v. Deo Narain (1886) 8 AIL, 279; Gurusami v.
Ganapathia (1882) 5 Mad., 337; Anant Ram v. Collector oj Etah
(1918) 40 AIL, 171, P.C.; Sri Thakur Ramkrishna v. Ratanchand
(1931) 58 LA., 173, 53 AIL, 190, Soorendro Pershad v. Nundun Misser
(1874) 21 W.K., 196, Dalibai v. Gopibai (1902) 26 Bom., 433; Aaa-
dhialal v. Muna (1898) 20 AIL, 135, In re Dattatraya Govind (1932)
56 Bom., 519; Raj Kishore v. Madan Gopal (1932) 13 Lah., 491;
Dwarka Ram v. Bakshi Parnaw (1935) 14 Pat., 595; Girdharilal v.
Mehr. A.l.R. 1935 Lah., 42; Guruswami Nadar v. Gopalasami (1919)
42 Mad., 629 (as to trade debts).

(A) Brijlal v. Inda Kunwar (1914) 36 AIL, 187, P.C.; Muhammad
Nuh V. Brij Bihari Lai (1924) 46 All, 656, Biswanath v. Kayastha
Trading Corporation (1929) 8 Pat., 450; Debendranath v. Nagendra-
noth (1933) 60 Cal., 1158; Ramineedi v. Janakiramayya (1914)
M.W.N., 874; Padam Singh v. Reotisaram A.I.R. 1929 AIL, 481; Gaje
Singh V. Mt, Uchhaba A.I.R. 1929 AIL, 223; Sohan Lai v. Zorawar
Singh A.I.R. 1937 AIL, 219.

(i) Banga Chandra v. Jagat Kishore (1916) 43 I.A., 249, 252, 44
Cal., 186, Ram Narain v. Nandrani (1928) 50 AIL, 823; Thakar Singh
V. Mt. littam (1929) 10 Lah., 613; Dwarka Ram v. Bakshi Parnaw
(1935) 14 Pat., 595; Hazara v. Dina A.I.R. 1933 Lah., 796; Puttoo
Lai V. Raghubir (1935) 9 Luck., 237, A.I.R. 1933 Oudh., 535; Aukula
Sanyasi v. Ramachandra (1926) 51 M.L.J., 73; Chandrakisor v. Kumar
Upendra Chandra A.I.R. 1923 Cal., 563. The mere non-recital in a
deed of sale of the legal necessity for the sale does not vitiate the
deed. The necessity may be proved by other evidence.

486

ALIENATIONS.

[CrtAP. X,

Lapse of
time.

Where the deeds were challenged at the time or near the
date of their execution, so that independent evidence would
be available, the recitals would deserve but slight
consideration, and certainly should not be accepted as
pi oof of the facts. But, as time goes by, and all the
original parties to the transaction and all those who could
have given evidence on the relevant points have grown old
or passed away, a recital consistent with the probability and
circumstances of the case, assumes greater importance, and
cannot lightly be set aside; for it should be remembered that
the actual proof of the necessity which justified the deed
is not essential to establish its validity. It is only necessary
that a representation should have been made to the purchaser
that such necessity existed, and that he should have acted
honestly and made proper enquiry to satisfy himself of its
truth. The recital is clear evidence of the representation,
and, if the circumstances are such as to justify a reasonable
belief that an enquiry would have confirmed its truth, then
when proof of actual enquiry has become impossible, the
rental, coupled with such circumstances, would be sufficient
evidence to support the deed. To hold otherwise would result
in deciding that a title becomes weaker as it grows older,
so that a transaction — perfectly honest and legitimate when
It took place — would ultimately be ini'apable of justification
merely owing to the passage of time (y).

S 373. Lapse of time does not affect the question of onus
of proof except in so far as it might give rise to a presumption
of acquiescence or save the alienee from adverse inferences
arising from the scanty proof offered (A:). But having regard
to the lapse of time since the transaction took place, it will
not be reasonable to expect such full and detailed evidence as
to the state of things which gave rise to the alienation m
question as in the case of alienations made at more or less
recent dates. In such circumstances, presumptions are per-
missible to fill in the details which have been obliterated by
time ( 1 ).

There is no difference between the burden of proof when
it IS desired to support a mortgage made by a manager of a

(y) (1916) 43 I A , 249, 44 Cal., 186 supra; Anant Ram v. Collector
of Etah (1918) 40 All, 171 P.C.

(A) Raveneshwai" Prasad Sijigh v. Chandiprasadsingh (1911) 38
tal., 721, 738 affirmed in 43 Cal , 417 P C.

(l) Chintapiani^hatla v Rani of Wadhwan (1919) 47 I A., 6, 1(),
43 Mad., 54l; Rudaraju Venkayqpima v. Sptaratmraju (1938) 1
M.L.J., 157, Thimmanna v. Rarrid Bhattd A.I.R. 1^^ Mad., 300.

5 >ARAs. 373-375.]

AUENATIONS.

46t

joint estate and that which is required to support the mortgage
jnade, for example, by a widow who has only a similar limited
power of disposition (m) .

§ 374. Where it is once established that there was a Proof of

.debt which ought to be paid, and which could not be paid payment
without a loan or sale, if the validity of the transaction is
disputed on the ground that the debt had previously been
discharged or reduced, the burden of making out this case
rests upon the person who sets it up. Payment is an affirma-
iive fact which cannot be assumed, merely on account of the
antiquity of the debt in),

S 375. When money is borrowed on the security of the Rate of
family property at a high rate of interest or upon onerous mterest.
lei ms, it IS incumbent upon those who support the transaction
lo show not only that there was a necessity to borrow, but
also that it was not unreasonable to borrow at some such high
rate and upon some such terms, and if it is not shown that
tthere was a necessity to borrow at the rate and upon the terms
contained in the mortgage, that rate and those terms cannot
stand (o). The Court will affirm the transaction, but will
reduce the rate of inleiest oi otherwise give lelicf from the
ierms held to be unduly oppressive Ip). On a plea of no
legal necessity for a loan, it is open to the defendant
4o say that the rate of interest is e\cessi\ e ( <y ) . But
it cannot be held aprioti that a provision for compound
interest at a rate by no means uncommon in this

{m) Anantram v. Collector of Etah (1918) 40 All., 171, 175 P.C.

(n) Cavaly } encata v. Collector of Masidipatam (1867) 11 M.I.A.,.
4519, 633.

(o) Radhakishun v. Jagsahu (1924) 51 I.A., 278, 4 Pat., 19, Sunder
Mull V. Satyakinker (1928) 55 I.A., 85, 7 Pat., 294; Mahadeo v.
Bissessar (1923) 2 Pal., 488, Parmebhwar v Rajkishore (1924) 3 Pat.,
829, Kamta Prasad v Durga Dat A.I.R. 1935 Pat., 368, Markanda v.
Bidyanath A.I.R. 1935 Pat., 499; Nazir Begam v. Rao Rughunath
Singh 46 I.A., 145, 41 AIL, 571; Hurronath Roy Chowdhuri v. Rundhir-
Singh 18 I.A., 1, 18 Cal., 311, Ram Bujawan v. Nathu Ram (1923)
50 1.A, 14, 2 Pat, 285, Nand Ram v. Bhupal Singh (1912) 34 AIL,
126; Bhikhi Sahii v. Kodai Pande (1919) 41 AIL, 523; Ram Khelawan
V. Ram Naresh (1919) 41 AIL, 609; Durga Prasad v. Jewdhari (1935)
t62 Cal., 733.

(p) (1923) 50 I A., 14, 2 Pat., 285 supra (compound interest at
3% per mensem reduced to simple interest at 1% per mensem) ;
(1924) 51 I. A., 278, 4 Pat , 19 supra (24% compound interest with
half-yearly rests reduced to 24% simple interest) ; (1935) 62 Cal., 733
supra (18% compound interest with nine monthly rests reduced to 18%
simple interest) ; Harihar v. Lacchman A.I.R. 1934 Oudh, 246, 9
Luck., 657 (2% compound interest per mensem reduced to 2%
simple interest) ; Suraj Baksh v. Kedar Nath A.I.R. 1932 Oudh, 66,
"i Luck., 505.

(q) (1923) 50 I.A., 14, 22, 2 Pat., 285, 297, supra:

488

CONSENT OF COPARCENERS.

[chap. X,

Consent.

country is so improvident or excessive as to throw
upon the mortgagee the onus of justifying it even in
the absence of a plea by the defendants (r). “Compound
interest at a moderate rate may not necessarily be oppressive-
and similarly compound interest with infrequent rests may
not be oppressive, where compound interest coupled with
a high rate of interest and with frequent rests might be in
excess of any authority which the kartas could have” (s) ^
A manager of a joint family has authority to borrow upon
reasonable commercial terms. These terms are relative to th(?
time and the place and must be understood as a comprehensive
and convenient expression for such terms as can be freely
arranged between the borrower and the lender under the
circumstances of the particular case. It has no reference to
the current rate of interest upon mercantile transactions
Regard should also be had to the provisions of section 74
of the Indian Contract Act, 1872 and the provisions of the
Usurious Loans Act X of 1918.

376 An alienation made by a managing member which
cannot be supported upon the ground of legal necessity or
benefit to the family estate will be valid where all the copar-
ceners m the family, being adults, consent to it, as it would be
valid when they all join m the alienation (w ) . This is explicitly
recognised in the Mitakshara: “among unseparated kinsmen,,
the consent of all is indispensably requisite because no one is»
fully empowered to make an alienation, since the estate is in
common” (v) In the Vivadachintamani, it is laid down:
“what belongs to many may be given with their consent.
Joint ancestral propcity may be given with the consent of
all the heirs” (ic). Any want of capacity on the part of the
manager to alienate the family property may theiefore be
supplied by the consent of the coparceners. Such consent may

(r) Ambalavana v Gown AIR 1936 Mad, 871, Kruthiventi
Perraju v. Sitarama (1925) 48 MLJ, 584

is) (1928) 55 I A, 85, 92, 7 Pat, 294, 302, supra.

(t) 55 I A, 85, 7 Pdl , 294, 300 supra

(u) badabart Prasad v. foolbash Koer (1869) 3 B L.R. F.B , 31,.
42, 43, Mahabeer Prasad v Ramyad (1874) 12 BLR, 90, Miller v,
Runganath (1886) 12 Cal, 389, Chhotiram v. Narayandas (1887) 11
Bom, 605, Kandasami v Somaskanda (1912) 35 Mad., 177 dissented
from on another point in Subba Goundan v, Krishnamachari (1922) 4S
Mad, 449; see Bri] Raj Singh v. Sheodansingh (1913) 40 I A , 167, 3S
All, 337; Balappa v Ahkubai A.I.R. 1924 Bom., 170, Kamla Prasad v.
Nathuno AIR 1922 Pat , 347,

(t>) Mit, I, 1, 30.

iw) Vivadachintamani, 77, 78. This applies not only to Madraa
and Bombay but to the other provinces as well where a coparcener
is not entitled to alienate his undivided share.

PARAS. 376-377.]

ALIENATIONS.

489

either be express, or implied from their conduct at or after
the time of the transaction. Where the property is invested
in trade, or in any other mercantile business, the manager of
the property will be assumed to possess the authority usually
exercised by persons carrying oi^ such business (x). Where
a joint family consists of both adult and minor coparceners,
the consent of the adults to an alienation by the managing
member or their joining with him in the execution of the
instrument of sale or mortgage will bind their interests in
the provinces of Madras and Bombay where it is open to a
coparcener to alienate his undivided share for value. In the
other provinces, where a coparcener cannot so alienate his
interest, the consent of the adult coparceners alone, where
there are minors, will not make the alienation valid even to
the extent of their shares. Their consent to an alienation is
not by Itself sufficient evidence of legal necessity (y).

•

§ 377. An alienation made by a father, neither for
an antecedent debt nor for a family necessity as well
as an alienation by the managing member of a joint
family made without legal necessity is not absolutely void
in the sense that it is not open to the other members
of the family who have not assented to the alienation at
the time to assent to it subsequently. They can
elect to abide by the alienation and treat it as good,
though it may not be quite correct to call it ‘‘ratification” ( 2 ) .
Such ratification will be inferred where a son, with full
knowledge of all the facts, takes possession of, and retains

ix) Bemola v. Mohun (1880) 5 Cal., 792, Samalbhai v. Someshvar
(1881) 5 Bom, 38, In re Haroon Mahomed (1890) 14 Bom., 189,
p. 194, §308- A.

(r) Salamat Khan v. Bhagwat (1930) 52 All, 499 (such gonsent
mav be useful to hll in the Idciiride in the evidence) ; Krishna Kumar
V. Gopaldas A.I R. 1934 Oudh, 475. In Kandasami v. Somaskanda
(1912) 35 Mad., 177, it is said that an assent by some alone though
evidence of propriety of an alienation will not, in the face of positive
proof of its impropriety suffice to pass their interests for such assent
does not amount to a transfer. This is apparently due to some mis*
conception, for an assent at the time by some only will bind their
interests both on the ground of estoppel as they must be held to have
joined in the alienation and on the ground that the managing member
is authorised to make the alienation to the extent of their interests at
least. This seems to be conceded at page 182 “If this means that there
was a consent to the mortgage at the time of its execution, the
appellant’s interest is certainly bound”.

( 2 ) Compare Rangaswami v. Nachiappa (1918) 46 I. A., 72, 42
Mad., 523 The question whether and in what sense the alienation
made without legal necessity is void or voidable is dealt with in
S§ 404-405.

49U

AUENATIONS.

[chap. X,

that which has been purchased with the proceeds of the pro-
perty disposed of (a). It is not competent to a manager of
a joint family and other adult coparceners to give on behalf
of minor coparceners express or implied consent to a trans-
feree of joint family property being the ostensible owner of
it so as to enable a purchaser from him to claim the protection
of s. 41 of the Transfer of Property Act. A sale made by
a benamidar of family property to a third person will not
therefore bind minor coparceners (6) ,

Right of § 378. So far we have been considering dispositions

cop^cenerto family property by which one member professed to

his share. bind the others, by selling or encumbering their shares
as well as his own. We have now to examine the

right of one member of a family governed by

Mitakshara system to dispose of his own share. The

theory of the Mitakshara law is clearly against such a
right, the only exceptional right being those stated m the
Mitakshara in I, 1, 27-30. Not much is to be found

in the earlier writers upon the right of a coparce-
ner to alienate his own share (§ 258). As property

began more frequently to pass from hand to hand, the
circumstances which would justify an alienation began
to be defined. The texts of Vyasa and Bnhaspati already
referred to (c) do not deal with any alienation by a copar-
cener of his own share. So Narada mentions joint property
among the eight kinds of things that may not be given, though
he expressly authorizes divided brothers to dispose of their
shares as they like (c?). And the author of the Vivada Chin-
tamani, while commenting on, and approving, these texts,
gives as his reason, “for none has any right over them
according to common sense”. “The assent of all the heirs
is required for a gift of joint ancestral properly whether
movable or immovable” (e). The Mitakshara and Mayukha,
in laying down the right of alienation are evidently dealing
with the case of the father as representing the entire family (/).
The idea of any individual dealing with his own interest
while the family was joint could not have occurred to them,

(а) Gangabai v, Vamanaji (1866 ) 2 Bom. H.C , 301, per curiam*
Modhoo Dyal v. Kolbur (1868) B.LR. Supp. Vol., 1018, 9 W.R., 511.

(б) Shankar y. Daooji Misir (1931) 58 I. A , 206, 53 AIL, 290.

(r) Mit., I, 1, 27, 28, 30.

id) Nar., IV, 4, 5; XIII, 42-43; Brih , Dig., I, 403; Daksha, Dig.^
I, 409; Yaj., II, 175.

(e) Vivada Chintamani, pp. 72, 77, 78.

(/) Mit., I, 1, 27; V. May.. IV, 1, 3, 5.

jpAraS. 378-379.] alienation of coparcener’s interest.

491

ior any recognition of the right to alienate without a partition
would necessarily have the effect of introdticing strangers into
the coparcenary, without the consent of its members and
-defeating the right of survivorship, which they would other-
wise possess (g ) .

§ 379. It is probable that the first inroad upon the strict
law took place in enforcing debts by way of execution. We
have already seen that Hindu law ascribed great sanctity
to the obligation of a debt, and, in the case of a father, enabled
him to defeat the rights of his sons, through the medium of
his creditors, though it denied him the power to do so by an
express alienation (§ 323). It would be a natural transition
to extend this principle to all coparceners, so far as to allow
a creditor to seize the interest of any one in the joint properly
as a satisfaction of his separate debt.

Since the decision, however, of the cases of Virasvami v.
Ayyaswami {h) , of Peddamuthulaty v. Timma Reddy (i),
Palanivelappa v. Mannar u (j) and Rayacharlu v. Venkatara-
maniah (A), it has been the settled law in the Presidency of
Madras that one coparcener may dispose of undivided ances-
tral estate, even by contract and conveyance, to the extent
of his own share and a fortiori that such share may be seized
and sold in execution for his separate debt.

To the same effect the law was settled for the province
of Bombay as is shown in the cases of Damodhar v.

(^) The same view is taken by W. MacNaughten (1 W. MacN., 5) ;
but a different view was held by Mr Ellis (2 Stra. H L., 350) . Mr.
’Colebrooke apparently considered that a gift by one co-heir
of his own share would be certainly invalid, and that a sale
or mortgage would in strictness be also illegal; but that in the latter
case “equity would require redress to be afforded to the purchaser,
by enforcing partition of the whole or of a sufficient portion of it, so as
to make amends to the purchaser out of the vendor’s share” (2 Stra.
H.L., 344, 349, 433, 439). This opinion was adopted by Sir Thomas
Strange in his book, and acted on by him from the Bench* 1 Stra.
H.L., 200, 202.

(A) (1863) IMad H.C , 471.

(i) (1864) 2 Mad.K.C., 270; Suraj Bunsi's case (1879) 6 l.A.
88, 102, 5 Cal., 148.

(/) 76., 416.

(k) (1866) 4 Mad. H.C., 60. The eatliest case decided in Madhis
was one before Sir Thomas Strdnge in 1813: Ramasamy V. Sieshachella
2 N.C., 234 (240) (74). This principle wa^ followed by the Sudder
Court in three cases in 1859 and 1860: Rarhkutti v. Kalaturaiyan
Mad. Dec. of 1859, 270; Kanakasabhaiya v. Seshachella Mad. Dec. dt
1860, 17; Sundara v. Tegaraja ib^ 67.

Share may be
alienated for
value.

In Madras.

In Bombay.

492

ALIENATIONS.

[chap. X*

Otherwise
in Bengal.

Damodar (Z), Vasudev v. Verikatesh (m), Fekirappa
Chanapa (n), Panduraiig v. Bhaskar (o), Udaram v. Ranu{p)
and V 1 andavandas v. Yamunabai (q) . After some fluctuations
of opinion it has been finally established in all the provinces,
since the decision of the Judicial Committee in 1873 in Deen
Dyal V. Jugdip Narain^ that “the purchaser of an undivided
property at an execution sale during the life of the debtor for
his separate debt does acquire his share in such property with
the power of ascertaining and realising it by a partition” (r).
It was but a step from holding that the share
of one member can be sold under a decree to hold
that he can sell it himself. In 1879, in Suraj Bunsi

V. Sheo Persaud (5), the Privy Council observed: “There can
be little doubt that all such alienations, whether voluntary
or compulsory, are inconsistent with the strict theory of a
joint and undivided Hindu family, and the law as established
in Madras and Bombay has been one of gradual growth,
founded upon the equity which a purchaser for value has,
to be allowed to stand in his vendor’s shoes, and to work out
his rights by means of a partition” (/).

§ 380. In 1869. in the leading case of Sadabart
Prasad v. Foolbash Koer, it was decided by a Full
Bench of the Calc utta High Court, in accordance with
the current of authorities m that province for neaily half
a century, that a niembei of a joint Hindu family had
no authority without the consent of hl^ co-sharers, to
mortgage his undivided share in a portion of the joint
family property, in order to raise money on his own account
and not for the benefit of the family (i^). In 1878
m Mahabeer Persad v. Ramyad, Phear, J., held that undei the
Mitakshara law so long as a Hindu family was undivided,
no member of the family had any separate proprietary right
in the property which he could alien or encumber. “The
pioperty under such circumstances belongs to all the members

(/) (1863) 1 Bom H.C , 182.

(m) (1873) 10 Bom HC, 139

(n) Ib, 162

(o) (1874) 11 Bom II C , 72.

(p) (1875) 11 Bom.HC., 76.

{q) (1875) 12 Bom HC, 229.

(r) (1877) 4 I.A, 24/, 3 Cal., 198, (1879) 6 I A , 88, 103, 5 Cal.,
148. But attachment during the debtor's lifetime is enough.

( 5 ) (1879) 6 I.A., 88, 5 Cal., 148, 166.

(r) See 1 Stra HL, 1st ed , 179, and App II, pp 277 and

282.

(a) (1869) 3 Beng.L.R. F.B., 31.

PARAS. 380-381.] ALIENATION OF COPARCENER’S INTEREST.

493

of the family jointly, as to a corporation, and no one of the
individual members has any share in it, which he can deal
with as his property” (v). In 1890, in Madho Par shad v.
Mehrban Singh, a case from Oudh, where a Hindu governed
by the Mitakshara law, without the consent of his coparcener
had sold his undivided share in the family estate for his own
benefit and received the purchase money for his own use,
the Privy Council held that on his death, his surviving copar-
cener was entitled to the said share by survivorship and to
recover the same from the purchaser and that the latter had
no equity or charge thereon against the survivor in respect of
his purchase money (u;). In 1893, in Balgohind Das v.
Narain Lai, a case from Benares, the Privy Council laid down
as the settled law of the Mitakshara, as administered in Bengal
and the North-West Provinces (now the United Provinces),
that a Hindu cannot, without the consent of his coparceners,
sell or mortgage his undivided share in the ancestral estate
for his own benefit (x) . In 1917, in Lachhman Prasad v.
Sarnam Singh, a case from the United Provinces, Lord Hal-
dane, delivering the judgment of the Judicial Committee, held
that a mortgage of the property of a Mitakshara joint family
by its karta, unless necessity or an antecedent debt of the
father is proved, is void; the transaction itself gives to the
mortgagee no rights against the karta’s interest in the joint
family property (y).

§ 381. The result of these and other authorities is
that according to the law of the Mitakshara as adminis-
tered in the provinces of Madras ( 2 ) and Bombay (a)
and the Central Provinces including Berar (b;, a co-
parcener in an undivided family may sell, mortgage
or otherwise alienate for value, his undivided inter-
est in coparcenary property without the consent of the
other coparceners. In all the other Provinces, a coparcener

( 1 ;) (1878) 12 Beng.LR., 90, 94.

iw) (1891) 17 I.A., 194, 18 Cal., 157.

ix) (1893) 20 I.A., 116, 15 AU., 339,

(y) (1917) 44 I.A., 163, 39 All., 500.

(z) Aiyyagari v. Aiyyagari (1902) 25 Mad., 690, 703 F.B.; Chinnii
Pdlai V. Kalimuthu (1912) 35 Mad, 47 F.B.; Subba v. Venkatrami
(1915) 38 Mad., 1187, 1191; Nanjundaswami v. Kanagaraju (1919)
42 Mad., 154.

(а) Rangayana v. Ganapabhatta (1891) 15 Bom., 673; Pandu v.
Goma Ramji (1919) 43 Bom., 472; Pandurang Narayan v. Bhagwan-
das (1920) 44 Bom., 341; Gundayya v. Shrinivas A.I.R. 1937 Bom., 51.

(б) Syed Kasam v. Jorawar (1922) 49 I. A., 358, 50 Cal., 84;
Ganpatrao v. Kanhyalal A.I.R. 1934 Nag., 132; see Ramkisan v. Damo^
dar A.I.R. 1934 Nag., 108.

and in

Northern

India.

Law as
settled in
different
provinces.

494

GIFT OF SHARE INVAUD.

[chap. X,

Gift

invalid.

cannot sell, mortgage or otherwise alienate for value his^
undivided interest in the joint family property without the-
consent of the other coparceners (c) and a father who is a
co-sharer with a minor son cannot give such a consent on
behalf of his minor son (cl).

An alienation by a coparcener made without the consent
of the other coparceners has been held to be only voidable at
the option of the other coparceners, the alienating coparcener
himself not being competent to impeach it (e) .

In all the provinces in India, the undivided interest of a
coparcener in joint family property may, during his lifetime
be seized and sold in execution of a decree against him for
his own debt. Provided the attachment was made before his
death, it is immaterial whether the sale is before or after
death (/J .

§ .‘^82. It is now equally well settled in all the

Provinces that a gift or devise by a coparcener in a

Mitakshara family of his undivided interest is wholly

invalid Ihe exceptional cases as recognised by the Mitak-
shara w'here it is open to the father or managing member
to make a gift of ancestral movable or immovable pro-
perty have been already noticed ($ 5 §355, 369, 370). A
coparcener cannot make a gift of his undivided interest in
the family pioperty. movable or immovable, either to a

(c) fAiks/wu (.hand v Anandi (1926) 53 1 A , 123, 132, 48 All., 113

(Benares school), Chamaili v Raniprasad (1880) 2 All, 267;

Rama IS and \ Gobindsingh (1883) 5 All, 384, Bhagirathi v Sheobhik
(1898) 20 All, 325, Chandradeo v Matapra'^ad (1909) 31 AH, 176
FB , Kali Shankar v Nawabsingh (1909) 31 All, 507, Anant Ram

V ColLedor of Etah (1918) 40 All, 171 PC ; Ram Sahai v. Parbhu
Dayal (1921) 43 All, 655, Chandar v. Dampat (1894) 16 All, 369
(consent is necessary even if a coparcener surrenders his interest in
favour of a coparcener), Ghasitey Mai v Harprasad AIR 1937 All,
99, Manna Lai v. Karusingh (1920) 1 PLT, 6, 13 M L W. 652
PC, AIK 1919 PC 108, Jivala Prasad v Protap (1916) 1
PLJ, 497, Amar Dayal v Harpershad (1920) 5 PLJ, 605, Ram
Bilas V. Ramyad (1920) 5 PLJ, 622, Mathura v Rajkumar (1921)

6 PLJ, 526, Mahindra v Sitaram A.I R. 1935 Pal, 319, Ralla Ram

V Atmaram (1933) 14 Lah , 584, Angara] v Ram Rap (1931) 6
Luck, 158, AIR 1930 Oudh, 284, Puttoo Lai v. Ragiibir Prasad
(1934) 9 Luck, 237, AIR 1933 Oudh, 535.

(d) Lakshmi (.hand v Anandi (1926) 53 I A , 123, 132, approving
the dictum of Sir John Wallis C J. in Subbarami v. Ramamma (1920)
43 Mad., 824

(e) Muhammad Muzammil Ullah v. Mithu Lai (1911) 33 All,.
783 FB , Bakhshi Ram v Liladhar (1913) 35 All, 353, Tota Ram v.
Hargobind (1913) 36 All, 141; Durga Prasad v. Bhajan (1920) 42
All., 50, Jagesar v. Deo Dat (1923) 45 AIL, 654, Sarja Prasad v.
Mangal Singh (1925) 47 All, 490; Madan Lai v Gajendra Pal
(1929) 51 All, 575, Madan Lai v. Chiddu (1931) 53 AIL, 21 F.B.;
Kharag Narain v. Janki Rai (1937) 16 Pat. 230.

(/) Deen Dyal v. Jugdeep Narain (1877) 4 I. A., 247, 3 Cal. 198.-

PARA. 382.]

DEVISE OF SHARE INVALID.

49S

Stranger or to a relative except for purposes warranted by
special texts (g). lyi Radhakant Lai v. Nazma Begum, gifts
of a part of the joint family estate made by a Hindu in favour
of two of his concubines and the daughter of one of them
were held to be invalid as against his sons and grandsons
even in respect of his own interest (h).

In Vitla Butten v. Yamenamma, the right of devise was
denied to a coparcener in respect of his undivided interest.

The Court observed: “At the moment of death, the right Devise
of survivorship is in conflict with the right by devise. Then
the title by survivorship, being the prior title, takes pre-
cedence to the exclusion of that by devise” (i) In Lakshman
Dada Naik v. Ramchandra, the Judicial Committee observed:

“Their Lordships are not disposed to extend the doctrine of
the alienability by a coparcener of his undivided share
without the consent of his co-sharers beyond the decided
cases .... The question is not so much whether an
admitted principle of Hindu law shall be carried out to its
apparently logical consequences, as what are the limits of
an exceptional doctrine established by modern jurisprudence.

.... The principles upon which the Madras Court has
decided against the power of alienation by will are sound,
and sufficient to support that decision” (/)• It is therefore
settled that an undivided coparcener cannot make a gift
of his share, or dispose of it by will (k).

(g) Baba v. Timma (1884) 7 Mad, 357 FB., Bonnnsami v.
Thatha (1886) 9 Mad., 273; Ramanna v. Venkata (1888) 11 Mad,
246. In Rottala Runganatham Chetty v. Pulicat Ramasami Chetty
(1904) 27 Mad, 162, 166, a Full Bench of the Madras High Court
observed: “It has now been definitely settled by judiciMi decisions
that It is incompetent to an undivided member of a Hindu family,
to alienate by way of gift his undivided share or any portion thereof
and that such alienation is void in toto, and this principle cannot
be evaded by the undivided member professing to make an alienation
for value, when such value is manifestly inadequate and inequitable.
In such a case, the transaction can be upheld against the family, in
lespect of the alienor’s interest in the joint family property, only
to the extent of the value received.” See also Venkatapathi v.
Pappia (1928) 51 Mad., 824.

(A) (1918) 45 Cal, 733, 746, 747 P.C.

(i) (1874) 8 M H C., 6, 12; Lakshmi Chand v. Anandi (1926) 53
I.A., 123, 48 All., 313; (approving 8 M.II.C., 46). See V enkatanarayana
Pillai V. Subbammal (1915) 43 I.A., 20, 39 Mad., 107.

(;) (1880) 7 I.A., 181, 195, 5 Bom., 48.

(A) Ponnusami v. Thatha (1886) 9 Mad., 273 (gift) ; Ramanna v.
Venkata (1888) 11 Mad., 246 (gift) ; Rottala v. Pulicat (1904) 27
Mad., 162 (gift) ; Gangubai v. Ramanna (1866) 3 Bom., H.C., A.C.J.,
66; Udaram v. Ranu (1875) 11 Bom. H.C., 76; Vrandavandas v.
Yamuna (1875) 12 Bom. H.C., 229 (gift) ; Kalu v. Barsu (1895) 19
Bom., 803 (gift) ; Sitaram v. Harihar (1911) 35 Bom , 169 (gift) ;
Parvatibai v. Vishnavanath (1915) 39 Bom., 593 (will) , Mt Lalita
Devi V. Ishar Das (1933) 14 Lab., 178 (will).

496

ALIENATIONS.

[chap. X,

Now that it is an established principle of Hindu law
that It is open to a coparcener by unilateral declaration of
intention to sever in interest from the other coparceners, the
rule that a coparcener cannot make a gift, or a devise of his
undivided interest has become to some extent mitigated in
its severity. In Narayana Rao v. Purushothama Rao, it was
held that a coparcener in an undivided family has only to
send a registered notice to the other coparceners expressing
his desire to become divided m interest from them so as to
be able to make a gift or devise of bis undivided interest and
it will not make any difference in respect of the validity of
the will made by him if the notice sent by him before the
execution of the will is received by the other coparceners after
his death (Z).

Family In Lakshmi Chand v. Anandi, two undivided brothers,

arrangement. executed a document described as an agreement by way of
will which provided that if either party died without male
issue, his widow should take a life interest in a moiety
of the whole estate. It was held by the Privy Council
that the widow of the brother who died without
male issue would as against the other brother he entitled to
her husband’s moiety, treating the will as evidence of a
family arrangement contemporaneously made and acted
upon, since it was open to a coparcener to dispose of his
share with the consent of the other (w).

Renunciation. § 383. A gift by a coparcener of his entire

undivided interest in favour of the other coparcener
or coparceneis will be valid whether it is regarded
as one made with the consent of the other or others or as a
renunciation of his interest in favour of all {n). But a gift
or renunciation of his interest by one coparcener in favour
of one of several coparceneis can be valid neither as a gift

U) (1938) 1 M L.J , 45 following Rama Aiyar v Meenahshiammal
(1930) 33 A1 L \V , 384 Sec dl5^o Venkateswara Pattar v Mankayammal
(1935) 69 AT L J , 410, 421

(m) (1926) 53 I A, 123, 48 All, 313, following Brijraj Singh v.
Sheodansingh (1913) 40 LA, 161, 35 All, 337, Venkoba Sah v. Ran-
ganayaki (1936) 71 AILJ, 454, Babu Singh v Mt Lai Kuer AIR.
1933, All, 830, Seethiah v Miityalu AIR, 1931, Mad, 106, sec
Radha Ram v. Gangaram A I R., 1935, Lah , 661.

(n) Thangavelu Pillai v. Piirshottam Reddi (1914) 27 M L J.,
272, Allan V enkatapathi Raja v. Dantaluri V enkatanarasimha Raja
(1936) 63 I A , 397, 119371 Mad, 1, Chandar Kishore v Dampat (1894)

16 All , 369. Where one of two coparceners paid all family debts out
of his separate property and the other coparcener conveyed to the
former for his services a moiety of his share at the partition of the
family properties, it was held that on equitable principles the alienation
was unassailable, Ananthachan v. Krishnaswami A.I R. 1938 Mad., 102..

PARAS. 383 - 385 .]

AUENATIONS.

497

nor as a renunciation. In Alluri Venkatapathi Rajn
V. V enkatanarasimha Raju, the Privy Council held that a
•coparcener’s renunciation of his interest merely extinguishes
his interest in the joint estate and its only effect is to reduce
the number of the persons to whom shares will be allotted
if and when a division of the estate takes place (o). A
renunciation by a coparcener is not an alienation of his
interest in favour of the others (p) (§454).

§ 384. Next as to the rights of purchasers of a co-
parcener’s interest either at an execution sale or at a private
sale. Under the Dayabhaga law where the coparceners hold
in quasi -severalty, each member has a right before partition
to mark out his own share, and to hold it to the exclusion
of the others. This doctrine was carried to the extent of
holding that the purchaser at a Court sale of the rights of one
member was entitled to be put into physical possession even
of a pait of the family house (q). These decisions which
were prior to section 44 of the Transfer of Property Act are
no longer law. That section disentitles such a purchaser
to joint possession or common or part enjoyment of the
dwelling house (r).

§ 385. But it is otherwise in cases under the Mitakshara
law, where no member has a right, without express agreement,
to say that any specific portion is exclusively his. Conse-
quently, the purchaser at a Court auction cannot claim to

(c) (1936) 63 LA, 397, [19371 Mad., 1; Mukund v. Balkrishna
(1927) 54 I A., 413, 52 Bora, 8; Anand Rao v. Vasant Rao (1907)
9 Born. L.R , 595 PC affirming (1904) 6 Bora. LR, 925; see also
Shiva j Rao v. Vacant Rao (1909) 33 Bom, 267; Karamsingh v. Suren-
darsingh AIR, 1931 Lali., 289.

ip) In Peddayya v. Ramalingam (1888) 11 Mad., 406, it was held
that such a renunciation may be made in favour of any one coparcener
and need not be in favour of all and that it would increase the share
of the coparcener in whose favour it was made. It was also observed
in that case that according to the Smriti*?, the renunciation operates as
an alienation of one’s coparcenary interest in favour of the others.
This was approved in a dictum in Thangavelu Pillai v. Purshottam Rcddi
(1914) 27 MLT, 272 These dicta are not good law especially after
the decision of the Privy Council in Alliiri Venkatapathi v. Dantuluri
V enkatanarasimha (1936) 63 I.A., 397, [19371 Mad., 1; Tulsi

Rai v. Haji Raksh A.I R. 1938 Lah., 478. In Gundayya
Hanmant Naik v. Shriniwas Narayan Naik A.I.R. 1937 Bom , 51
there being only two coparceners the gift by one in favour of the
other was held valid. It would be either a valid renunciation or a gift
with the consent of the other.

( 9 ) Ramtanoo v. Ishurchunder^ S. D. of 1857, 1585; Koonwur v.
Shama Soonduree (1865) 2 W.R. (Mis.), 30; Eshan Chunder v. Nund
Coomar (1867) 8 W.R., 239.

(r) Kshirode v Saroda (1910) 12 C.L.J., 525, Girijakanta v. Mohim
Chandra (1915) 20 C.W.N., 675.

34

Right of
purchaserflL

Dayabhaga

law.

Mitakshara

law.

498

PURCHASER ACQUIRES EQUITY.

[chap. X,

b(‘ put into possession of any definite piece of
property ( 5 ). Accordingly, the Judicial Committee held
that the proper decree to he passed in a suit in which
the purchaser has not obtained possession w^ould be an^
order declaring that the purchaser acquired the undivided
share (specifying the same) of the judgment debtor in the
property with such powei of ascertaining the extent of such
shaie by means of a partition as the judgment debtor
possessed in his lifetime and confirming the possession of
the other coparceneis subject to such proceedings to enforce
his rights as the purchaser might take. And where the pur-
chasci has obtained possession they held that the plaintiff
coparcener should obtain possession of the whole of the
family property with a declaration that the purchaser had
acquired the interest of the co-sharer and was entitled to
take proceedings to have that interest ascertained by
paitition (/) .

Alienee
acquire!? only
equity.

386. Where the transfer is of an undivided interest
in the whole of the family property the transferee will get
whatever mav be allotted to the transferor’s share in a suit
for partition (u ) . A coparcener may alienate either his
undivided share in the whole of the family property or his
undivided shaie m certain specific family property or the
whole of a specific item of the family property (v) , Tn all
these cases, the alienee does not acquire an interest in the
property so as to become a tenant-in-common with the
iiiembers of the family entitled to possession but only
an equity to stand in his yendor’s shoes and to woik out
his lights by means of a partition {iv) . The yendee’s suit
to enforce the sale by partition is not technically a suit for

(s) Knife V (Jioitun (1874) 22 "W R , 214, Knllapa v V enkatesh
(1878) 2 Bom, 676, Manjaya v Shanmuga (1915) .18 Mad, 684,
Pandit Vithoji v. Goma Ramji (1919) 43 Bom, 472

it) Sura] Bunsi Koer v Shoo Prasad (1880) 6 lA, 88, 5 Cal, 148,
at 174, Hurdi Narain v. Rudra Prakash (1883) 11 I.A , 26, 10 (.al.,
626, 637, Medni Prasad v JSand Keshwar (1923) 2 Pat, 386
ill) Aiyyagari v. Aiyyagari (1902) 25 Mad, 690, 718 F B.

iv) (1902) 25 Mad, 690, 718, Venkatachella v C hinnaiya (1870)
5 MH.C.R, 166,

iw) Sura] Bunsi Koer v. Sheo Pershad (1879) 6 I. A., 88, .5 Cal.,
148, Man]aya v Shanmuga (1915) 38 Mad, 684, Mahara]a of Bobbili
V. Venkataraman]uliL (1916) 39 Mad, 265, dissenting from dicta to the
contrary in Aiyyagari v Aiyyagari (1902) 25 Mad, 690, Chinnu Pillai
V Kalimuthu (1912) 35 Mad, 47 F B and Subba Row v Anantha-
narayana (1912) 23 MLJ., 64; Kotabalabhadra Patro v. Khetra Doss
(1916) 31 MLJ, 275, Subba Goundan v Krishnamachari (1922) 45
Mad , 449, 460, Ganesh Row v Tul]a Ram Row (1914) 26 M.L T.,
460, 466; but see per Sadasiva Ayyar, J., Soundararajan v. Arunachalant
Chetty (1916) 39 Mad., 159, 172 F.B.

PARAS. 386-387.]

ALIENATIONS.

499

partition in the sense of the Mitakshara law; and the decree
which he may obtain enforcing the transfer, either in whole
or in part, by a partition of the family property will not
by itself break up the joint ownership of the members of
the family in the remaining property nor the corporate
character of the family (nc). In dividing the family pro-
perties the Court will, no doubt, set apart for the alienating
coparcener’s share the propeity alienated if that can be
done without any injustice to the other coparceners, and
such property, if it is so set apart, may be given to the
transferee of the interest of such coparcenei. But this is
only an equity and the alienee is not, as of right, entitled
to have the property so allotted. If such property is not so
set apart, then the alienee would be entitled to recover that
propertv which was allotted to his vendor for his share,
in substitution foi the property that was alienated in his
favour iy).

§ 387. fiut the purchaser at a court sale, it has been held
in Sabapathi v. Thandavaroya ( 2 ) is not entitled to the pro-
perties which the alienor got at a subsequent partition, if
they were not comprised in the sale certificate, in substitution
for the properties specified in it. And in Dhadha Sahib v.
Muhammad Sultan Sahib, it was further held that even though
a vendee of specific lands from a coparcener of a Hindu
family mav be entitled to lands of equal value out of the
lands allotted to his vendor in a subsequent partition in the
family, a vendee from the first vendee has no such right,
his onlv remedy being to get damages from his vendor (a).
The grounds of decision in Sabapathi v. Thandavaroya ( 2 )
are that there is no warranty of title in a Court sale and that
there is no privity of contract between an auction purchaser
and a judgment debtor. This would seem to be taking too
narrow a view. In Abdul Aziz v. Appayasami Naicker,
the Judicial Committee laid down that the rights of parties
to a contract contained in the certificate of sale are to be
judged of by that law by which they may be presumed to

(ac) Per Bashyam Ayyangar, J., in (1902) 25 Mad , 690, 718 supra.
(v) Per Sankaran Nair, J., in Manjaya v. Shanmuga (1915) 38
Mad., 684, 687; (1902) 25 Mad., 690, 718-719 F.B. supra; Chinnu
Ptllai V. Kalimuthu (1912) 35 Mad, 47 F.B.; Hem Chunder Ghose v.
Thako Mont Debt (1893) 20 Cal., 533; Amolakram v. Chandansingh
(1902) 24 All., 483, Narayanbin Babaji v. Nathaji Durgaji (1904) 28
Bom., 201; Pandurang v. Bhasker (1874) 11 B.II.C.R., 72; Udaram v.
Ranu (1874) 11 B.H.C.R., 76; Dhulabhai Dabhai v. Lola Dhula (1922)
46 Bom., 28; Gurlingappa v. Saburamappa A.LR., 1931, Bom., 218.

(z) Sabapathi Pdlai v. Thandavaroya Odayar (1920) 43 Mad., 309;
Chidambaragauda v. Channappa, A.I.R., 1934, Bom., 329.

(a) (1921) 44 Mad., 167.

Auction

purchaser.

500

alienee’s suit for partition. [chap. X,

Alienee’s suit
for partition.

Coparcener’s

suit.

have bound themselves (b). Neither the purchaser at a
Court sale nor a purchaser at a private sale acquires any
interest in the specific property; both acquire only an equity
which is the same in the one case as in the other, that
is, an equity to stand in their alienor’s shoes and to work
out their rights by means of a partition (c). The equity
depends upon the alienation being one for value and not
upon any contractual nexus. The right to get propeities
which fell to an alienor at a partition is the primary and
indeed the only right which an alienee has, though the Court
may at a partition allot to him the properties which he
purchased at a Court sale or at a private sale if it could be
conveniently done.

§ 388. The alienee’s suit for partition must be one for
the partition of the entire property and not for partition of anv
specific interest for he acquires no interest therein and the
coparcener who alienated had himself no such interest. He
cannot sue for partition and allotment to him of his share
of the property so alienated (d). nor is he entitled to any
mesne profits in respect of his share between the date of
his purchase and the date of his suit foi partition (e). The
coparceners objecting to the alienation may, without bringing
a suit for general partition, sue for a decree for their shares
in the property alienated by the coparcener ( /) . The dis-
tinction rests upon the ground that in a suit foi partition

(b) (1903) 31 I A, 1, 9, 27 Mad, 131

(c) Suraj Bunu Koer v Shea Pershad (1880) 6 I A, 88, 5 Cal,
148, Manjayya v, Shanmuga (1915) 38 Mad, 684, Maharaja of
Bobbih V V enkataramanjulu (1916) 39 Mad, 265.

{d) 38 Mad , 684, 687 supra, Venkatarama v Meera Lahni (1890)
13 Mad, 275, Palani v Masakonan (1897) 20 Mad, 243, Pandurang
V. Bhaskar 11 Bom. H.C., 72, Udaram v. Ranu (1875) 11 Bom HC,
76, Murarrao v. Sitaram (1899) 23 Bom, 184, Shivmurteppa v.
Virappa (1900) 24 Bom, 128, Ishrappa v Krishna (1922 ) 46 Bom,
925.

(e) (1916) 39 Mad, 265 supra, Trimbak Canesh v. Pandurang
(1920) 44 Bom, 621. It would be otherwise if the coparcener is
found to have become divided m stdlub Sivaramamurthi v Venkayya
(1934) 57 Mad, 667, Vanjapuri Goundan v Pachamuthu (1918) 35
M L J., 609

(/) Ram Charan v Ajudhia Prasad (1906 ) 28 All, 50, Chinna
SanyasL v Suriya Razu (1882) 5 Mad, 196; Subramnnya v Padma-
nabha (1896) 19 Mad, 267, Iburamsa Rowthan v. Thiruvenkataswami
(1910) 34 Mad, 269 F.B , Manjaya v. Shanmuga (1915) 38 Mad , 684
FB.; Soun v Pachia (1926) 49 Mad., 483, 487, Hanmandas v.
Valabhdas (1919) 43 Bom, 17. An alienee from one coparcener may
however sue for partial partition an alienee from another coparcener:
(1910) 34 Mad, 269 F.B , Suranna v Subbarayudu (1933) 65 MLJ,
769; Kandaswami v Venkatarama (1933) 65 M.L.J., 696; Naro Gopal
v. Paragouda (1917) 41 Bom, 347, 355.

PARAS. 388-389.]

ALIENATIONS.

501

by the purchaser, an account of the whole estate must be
taken in order to see what interest, if any, the alienor pos-
sesses (g) ; but as the coparceners may wish to remain
undivided amongst themselves, they are entitled to confine
the suit between themselves and the stranger purchaser to the
property in dispute.

§ 389. An alienation by a coparcener does not put an
end to the coparcenary; whether he alienates the whole or
part of his interest in family propeily he will continue to
be an undivided member with rights of survivorship between
himself and the others in respect of all the family pro-
perty (g^). This view receives support from the decision of
the Privy Council in Rarnkishore v. Jainarayan where it was
held that it was open to the copaiceners to recover possession
of the property wrongfully alienated on the footing that
they were entitled to the estate as a joint undivided

(g) In TartriK haran v Debcndralal De (1935) 62 Cal., 655, decided
by d single judge, it has been held that “the purchaser of a small
portion of the joint family property from one of the co-owners is
entitled under the law to get a partition only of the land purchased
bv him. In such ca‘<es d suit for partial partition will lie, for to give
effect to the contrary view would be to affirm the principle that a
plaintiff can institute a suit for partition in respect of properly, in
which he has no interest at all”. This does not appear to be a
Mitak'-hara case A somewhat similar decision was given in Ram
Mohan v. Mulchand (1906) 28 AIL, 39, which overlooks the principle
that the alienee of an item in a general suit for partition may not
get the specihc property at all In Shyam Sunder v Jagarnath (1923)
2 Pat , 925, It was held that a suit against an alienee of a portion of the
properly by one coparcener to recover only his share of the property
without impleading tin othei coparceners as parties is not maintainable.

ig^) Aiyyagan v Anyagan (1902) 25 Mad., 690 F.B.; Manjaya v.
Shanmuga (1915) .18 Mad., 684, per Wallis, C. J., m Maharaja of
Bobbih \ J'rnkataramanjulii (1916) 39 Mad., 265, 267, 268, Venka-
tarayudu v Sivaramaknshnayya (1934) ,58 Mad, 126, 136, Lakshmanan
Chetttar v. Srinivabaiengar A.I.R., 1937. Mad , 131 ; Jagannadha
Rao V. Ramanna, A I.R., 1937, Mad., 461; Gurlingapa v. Nandapa
(1897) 21 Bom, 797 In Krishnaswami \. Rajagopala (1895) 18 Mad.,
73, thf question was whether when a coparcener sells his undivided
share and when a surplus is left after paying his debts from the
sale proceeds, that surplus is coparcenary properly subject to the right
of survivorship vesting in other coparceners or his self-acquired pro-
perlv devolving upon his demise on his childless widow. Multusami
Ayyar and Best, JJ., held that it is taken by survivorship. Whether the
alienee is in any sense and to any extent a tenanl-m-common or not, it
is difficult to see how by the mere fact of an alienation, the alienor ceases
to be a coparcener and becomes separate in interest. An alienation
of a specific item or of less than his share in the entire family property
will not bv Itself amount to a severance in interest. But where the
alienation is of his undivided interest in the entire family property,
there will be disruption and severance by conduct though it will not
be a unilateral declaration of his intention to sever in interest
(§455). It will be different where from the terms of the
sale or mortgage and the surrounding circumstances, an intention to
sever can be clearly inferred.

Status

unaffected by
alienation.

502

ALIENATIONS.

[chap. X,

Alienee’s

rights.

estate {h). The Judicial Committee considered that in
a suit for recovery of property by the coparceners, it would
be competent to the Court to make the relief granted to the
coparceners conditional on their assenting to a partition so
far as regards the alienor’s interest in the estate in order to
give effect to any light to which the alienee, standing in
the shoes of the alienor, would be entitled to work out by
means of a paitition This view has been followed in Davud
Been v Radhakrishna 4iyar (i) and in Ramasami v Venka-
tarania (j). A stricter Mew has been taken in Siibba Goundan
\ Krishnamachnn (A) and m Kandasanii v V elayutha (/).
The former appeals to be the better view as it avoids
multiplicity of actions.

i:; 890. The view taken by the Madias High Court that
as the purchasei from a coparcener »s not a tenant-in-coniinon
with the coparceners in the family, he is not entitled to
joint possession or to mesne profits from the date of the
alienation appears so far as the principles of Hindu law
are concerned to be the sounder view and is in consonance
with the Privy Council decisions, in Been DyaVs case, Sura]
Bunns c'ase and Hurdi Narain^s case (m) and also with the
decision in Ramkishore \ Jainarayan (n).

The Bombay High Court has however laid down in
Bhau V Budtia jVlanaku three piimiples as regards the
rights and leniedies of alienees and coparceners io) (1) A

ih) (1913) 40 I A., 213, 10 Cal, 966
(i) (1923) 44 M.LJ., 309
(y) (1923) 46 Mad, 815.

(A) (1922) 45 Mad, 449 — Kuniardswami Sastri, J, considered that
lo allow the alienee to claim in the coparcener’s suit for possessKin
would he to reco{;nise a counter-claim The Privy Council has iiili-
mated in Currimbhoy v Greet (1932) 60 I A , 297, 60 Cal, 980, that a
counter-claim does not exist in the mofussil But the decision of the
Privy Council in Ramkishore v jainarayan (1913) 40 I A , 213, 40
Cal., 966 was that the relief to the coparceners should be conditional
on their assenting to a partition, i e , they should be put upon terms.
It would not be the decreeing of a counter-claim.

(/) (1927) 50 Mad, 320. See also Hanmandas v Valabhdas (1919)
43 Bom., 17, 25-26

im) (1877) 4 lA, 247, 3 Cal, 198, (1879) 6 I A., 88, 5 Cal,
148, (1883) 11 I A, 26, 10 Cal, 626.

(n) (1913) 40 I A, 213, 40 Cal, 966 The view taken by
Kumaraswami Sastri, J, in Subba Goundan v Krishnamai hari (19221
45 Mad., 449 that the alienee is not liable for mesne profits till
repudiation is erroneous See §§ 404-405 It is also contrary to the
decision in Maharaja of Bobbili v. Venkataramanjulu (1916) 39 Mad.,
265, and to the decisions mentioned in note (g^) supra,

(o) (1926) 50 Bom., 204, 206; for a different view see Hanmandas
V. Valabhdas (1919) 43 Bom., 17.

PARA. 390.]

alienee’s rights.

503

stranger purchaser of the undivided share of a coparcener in
a joint Hindu family if out of possession should not be
^iven joint possession but should be left to his remedy of
^ suit for partition (p). (2) On the other hand, a copar-

cener, who has been excluded, may obtain joint possession
with such a purchaser, who has obtained possession of the
joint family property (^). (3) The purchaser in possession
need not be ejected in a suit for recovery of possession
brought by an excluded copaieener but can be declared to
be entitled to hold (pending a partition) as a tenant-in-
•<*ommon with the other coparceners (r). It is obvious that
the third lule is exactly the contrary of the lule laid down
I)y the Privy Council in the cases already referred to ( 5 ).
Fawcett, J., in Bhau v. Budha Manaku, distinguishes the
decisions of the Privy Council as dealing with Couit sales
of a copaicener’s share in Bengal, where the law as to the
right of a coparcener to alienate his undivided share is
different from* that in Bombay and Madras (^). It is plain
however that in all the provinces, as the law allows a copar-
cenei’s undivided interest to be sold in an execution sale,
the rights of a purchaser at an execution sale cannot depend
upon the fact that in Madras and Bombay an alienee at a
piivatc* sale can work out his equity on a partition. Whether
the sale is a court sale or a private sale, the alienee has only an
equity and there can be no distinction on this question which
is not a question of the Hindu law of the Maharashtra school
but “is an exception recognised by modern jurisprud-
ence” (w). And Ramkishore Kedaniath v. Jainarayan
was a case from the Central Provinces wheie the coparcener’s
interest can be alienated at a private sale and the decision
there was in connection with a private alienation and not
an execution-sale (v) . The third rule laid down bv the
Bombay High Court does not iherefoie appear to be consistent
either with authority or principle.

(p) Balaji Anant v. Ganesh Janardan (1881) 5 Bom., 499, Pandu
Vithoji V. Goma Ramp (1918) 43 Bom., 472; Ishrappa v. Krishna
(1922) 46 Bom, 925.

(q) Bhikii V Piittu (1905) 8 Bom. L.R., 99 and the ca'^es therein
cited.

ir) Babaji v. Vasudev (1876) 1 Bom, 95, Kallapa v. \ enkatesh
(1878) 2 Bom., 676; Dugappa v. Venkatram (1880) 5 Bom., 493;
(1926) 50 Bom., 204 supra, Achut Sitaram v. Shivajirao (1937) 39
Bom. L.R., 224, A.I.R., 1937, Bom., 244.

( 5 ) See the cases noted in note (m) supra,

it) (1926 ) 50 Bom., 204, 207.

(u) Lakshman Dada Naik v. Ramchandra (1881) 7 I. A., 181, 5
Bom., 48.

(t;) (1913) 40 I.A., 213, 40 Cal., 966.

504

Section 44,
T. P. Act.

Alienee takes
subject to
equities.

ALIENATIONS. [CHAP. X,.

§ 391. In this connection a difficulty is created by s. 44
of the Transfer of Property Act. That section runs as^
follows: — “Where one of two or more co-owners of immov-
able property legally competent in that behalf transfers his^
share of such property or any interest therein, the transferee
acquires, as to such share or interest, and so far as is necessary
to give effect to the transfer, the transferor’s right to joint
possession or other common or pait enj'oyment of the pro-^
perty, and to enforce a partition of the same, but subject
to the conditions and liabilities affecting, at the date of the
transfer, the share or interest so transferred. Where the
transferee of a share of a dwelling-house belonging to an
undivided family is not a member of the family, nothing
in this section shall be deemed to entitle him to j'oint posses-
sion or other common or part-enjoyment of the house”. The
section now applies to Hindus b\ viiLue of the Transfer of
Pioperty (Amendment) Act, 1929, which omitfed the words
‘Hindu oi Buddhist’ in the concluding part of section 2 of the
princij^al Act The decisions of the Madras High Court in
Venkatatania v Meera Lahai iiv) and m Kota Kalabhadra v.
Khetra Das (%) that section 41 could not override the Hindu
law were befoie the amendment and can no longer hold
good.

The language of the section, as its second sentence
indicates, will cover the case of a Hindu undivided family.
The words “subject to the conditions and liabilities affecting
at the date of the transfer, the share or interest so transferred”
cannot altogether take awav the transferee’s light to joint
possession conferred b> the section itself, but can only sub-
j’ect it to lestrictions and equities It would therefoie seem
that while the transferee of a share of a dwelling-house be-
longing to an undivided family is not entitled to joint
possession, a tiansfeiee of a share of othei immovable
property is entitled to joint possession and enjovment, he
would be tenant-in-common entitled to mesne profits, if he
is kept out of possession.

§ 392. It has been held that as the purchaser of a
coparcener’s interest gets only an equity to enforce a paiti-
tion, he takes the share upon partition subject to all the

iw) (1890) 13 Mad, 275.

ix) (1916) 31 M.L.J., 275.

PARAS. 392-393.] QUANTUM OF ALIEN EE’s INTEREST.

505

liabilities in the hands of the vendor, as for example a
liability to pay the alienor’s father’s debts (} ) .

In Bhagii'an Bhau v. Krishna jU it was held that where a
coparcener agrees to sell his interest and dies before the
completion of the sale, the vendee is entitled to specific
performance of the agreement ( 2 ). Such an agreement under
the Hindu law would of course not be enforceable against
the coparceners who take the property by suivivorship, but
the decision was rightly lested on the second illustration
to clause (c ) of section 27 of the Specific Relief A( t

§ 393 The share which an alienee of a coparcener’i^
interest acquires by the alienation is that to which his alienor
was entitled at the date of the alienation (a). While the quan-
tum of interest which the alienee acquires is to be ascertained
as at the date of the alienation, the pioperties of the family
in which he isf to get his shaie are as usual ascertained as
on the date of the suit for partition (b) ,

Wheie one of two or more coparceners in an undivided
Hindu family or one of two or more co-sharers, as for
instance, under the Dayabhaga law. mortgages his undivided
share in the joint estate or some of the properties held
jointly, the mortgagee takes the security subject to the right
of the othei coparceneis to enfoice a partition and thereby
to conveit what was an undivided shaie of the whole into
a defined poition held in severalty (c).

If the moitgaged pioperties are allotted at a subsequent
partition to the coparceneis or co-sharers other than the
mortgagors, they take the allotted properties, in the absence
of fraud, free from the mortgage, the mortgagee can therefore
proceed only against the properties allotted to the moitgagor
in substitution of his undivided share, whethei they are in

(y) Udaram v Ranu (1875) 11 Bom HC, 76, Narayan v Nathaji
(1904) 28 Bom., 201, Venkitreddt v Venkurcddi (1927) 50 Mad., 5'15
F.B.

(z) (1920) 44 Bom., 967, Ramappa v. Yellappa (1928) 52 Bom,
307.

(a) Naro Copal v Paragauda (1917) 41 Bom., 347, dissenting from
Gurlingapa v. Nandapa (1897) 21 Bom., 797. Aiyyagari v. Aiyyagari
(1902) 25 Mad, 690 F.B.; Chinnu Pillai v. Kalimuthu (1912) 35
Mad., 47 F.B.; Kasi Visveswara Rao v. Varahanarasimha A.I.R., 1937,
Mad., 631. On this point the ilecision m Rangasanu v. Kribhnayyan
(1891) 14 Mad., 408, F.B , i« no longer good law. The decision in
Muthukumara Sathapathiar v Sivanarayana (1933) 56 Mad., 534 is
contrary to the Full Bench decision in 35 Mad., 47 and was not
followed in A.I.R , 1937, Mad., 631, supra,

(b) (1933) 56 Mad., 534, supra.

Extent of
the share
alienated.

Rights of a
mortgagee
from a
coparcener.

50(> ALIENATIONS. [CHAP. X,

the possession of the mortgagor or of an alienee from
him (c).

391. Both m Madras and in Bombay, it is settled that
an actual alienation for \alue is enforceable to the same
extent b\ suit after the death of the alienor as it would have
been by suit during his life(f/).

S 395. In provinces othei than Madias and Bombav,
where the stricter rule of law, that it is not open to a
coparcener to alienate without the consent of the other copar-
ceneis, is enforced, the question how far an alienee has any
equity ha^ been the subject of consideiable discussion. In
Mahabeer Persad \ Raniyad, it was held that the alienee had
an equity which may be enfoiced by chaiging the share
of the alienor for the lepayment of the price paid (e). This
received a qualified appioval in Been ByaV s case (/) and
was subsequenll) discussed in Madho Parshad v. Mehrban
Sinf^h (g) and was acted upon m some cases (/i). But the
decisions of the Judicial Committee in Lachhrnan Prasad v.
Sarnam Singh (i) and in Anant Ram v Collector of Etah (j)
would seem in effect to restore the stricter doctrine of the
Mitakshara Where the law does not allow a coparcener to
alienate his undivided share without the consent of the other
coparceners, it is diflicult to see how a lepiesentation that
he has such a power which must be a lepresentation on a

i() Ihjnath Loll \ Hamoodeen (.houclr) (1873) 1 I A, 106;

Mohammad Ajzal Khan v Abdul Rahman (1932) 59 1 A , 405, 13 Lah.,
702, Muthia Raja v Appala Raja (1911) 34 Mad, 175, distinguishing
Lakshman v Gojml (1899 ) 23 Bom, 385 as a (‘ase where the partition
w'as in fraud of the mortgagee Amolak Ram v ( handansingh (1902)

24 All, 483, Hem Chunder Ghose v Thnko Mom Debi (1893) 20 Cal.,
533, Shahebzada Mahomed Kozim Shah \ Hills (1908) 35 Cal, 388
FB , Hakim Lai v Ram Lai (1907) 6 CLJ , 46, Joy Sankari Gupta
V Bharat Chandra (1899) 26 Cal, 434, Nagendra Mohan v Pyari
Mohan (1916) 43 Cal., 103, Thakiir Raghunandan Sahay v Thakur
JJnj)a (1929) 8 Pal, 258, 4mar Singh v Bhagwan Das (1933) 14
Lah , 749 Mohan Lai v U adhwa Singh AIR, 1934, Lah , 660, Rama
Aiyar v Bhagvathi (1936) 70 M L J., 506, Manitkavelu Chetty v.
Sateedan Sowcar (1937) MWN, 1340

id) Alamelu v Rangasami (1884) 7 Mad, 588, Rangasami v.
Knshnayyan (1891) 14 Mad, 408 FB , Anvagari v Aiy\agari (1902)

25 Mad, 690 F. B , Palaniandy v. Veramalai (1908) 15 MLJ, 486.

ie) (1878) 12 BL.R., 90.

(/) (1877) 4 I.A, 247, 3 Cal, 198.

ig) (1898) 17 I A., 194, 18 Cal., 157

(A) e g. Jarnuna Parshad v Ganga Parshad (1892) 19 Cal , 401,

ii) (1917) 44 I A , 163, 39 All., 500. Lord Haldane said “Now»
■whatever may happen when there are special circumstances such as
there were in the case referred to (12 B.L.R , 90), that is not the
general law”.

(;) (1918) 40 All., 171 P.C., 44 I.C., 290.

FARAS. 395-396.] OBJECTING COPARCENER’S REMEDIES.

507

point of law, can raise an equity. A representation to
amount to an estoppel must be a representation of an existing
fact (A;). A representation of the alienor that he has the
consent of the other members, which the hearei must know,
if he reflects, not to be true or which merely puts him on
enquiry, does not found an estoppel (/). In no case can such
an equity be enforced when the copaicener who made the
repiesenlation is dead. Immediately on this event, his shaie
passes by suivivorship to persons who aie not liable foi the
debts and obligations of the deceased (m).

§ 396. The remedies possessed by one member ol a
family against alienations made by another member, depend,
of course, upon the view taken by the Courts of the validity of
such alienations. According to the law administered in Madras
and Bombay, such alienations, whatever they ma^ piofess to
convey, are valid to the extent of the alienoi’s own interest
in the property. But though, consequently, no suit can be
maintained for the absolute cancelment of such an alienation,
a member of the coparcenary can sue and obtain a decree
for possession of the whole property, leaving the alienee
to establish his right to the share alienated to him by a
separate suit for partition (/i). But when the alienee takes
exclusive possession of any specific portion of the joint pro-
perty, he will be liable to be turned out at the suit of the
other coparceners (o). Even wheie there has been no
dispossession, if one member of an undivided family has
disposed of the family propcity to a greater extent than the
law entitles him to do, the other members have a right to
have the transaction declared void, except as to the trans-
feror’s share in Madras, Bombay and the Central Provinces,
and, in toto in the other provinces ( p) .

A fortiori, a sale which was an absolute fraud upon the
family, and known by the purchaser to be such, would be
rescinded by all the Courts, as the equity by means of which
it can be worked out, would absolutely fail iq),

(k) Jorden v. Money (1854) 5 H.L.C., 185; 10 E.R., 868; 13 Hals.
2nd ed., p. 471.

(/) Ashburner on Equity, 2nd Edition, p. 449.

(m) ante §346; (1890) 17 I.A., 194, 18 Cal., 157 supra,

(n) See ante §§ 385, 388.

(o) V enkatachella v. Chinnayya (1870) 5 166,

(p) Kanukurty v. V enkataramdas, 4 Mad., Jur., 251; Kanth Narain
▼. Prem Loll, 3 W.R., 102; Raja Ram Tewary v. Luchmun, 8 W.R.,
15; Chinna Sanyasi v. Suriya (1882) 5 Mad., 196.

(g) Ravji Janardan v. Gangadharbhat (1880) 4 Bom., 29; Sadashiv
V. Dhakubai (1881) 5 Bom., 450.

Remedies

against

alienation.

508

ALIENATIONS.

[chap. X,

Limitation.

§ 397. The period of limitation is twelve years from
the date of alienation under article 126 of the Indian Limita-
tion Act, 1908, for a suit by a son to set aside an alienation
by a father of ancestral propeity whether movable or
immovable. A similar period of twelve years for a suit to
recover possession of immovable property alienated by a
managing member or othei copart enei, not being the father.,
is provided by article 1 41 of the A(’t(/ ). These articles apply
only where the alienee has been in possession. A suit for
a mere dei laralion is governed by article 120 of the
Limitation Act which provides a period ol siv years from
the date when the right to sue accrues (a)

Where a suit to set aside a falhei’s alienation by sons who
were in existence at the date of alienation is baried, it is
equally barred as to sons who weie born subsequent to the
alienation, for they do not acquire a fresh cause ol action (^).
Conflicting views have been expiecscd on the question whether
when a suit to set aside an alienation b) an elder son is
barred, a suit bv a younger son is also barrc'd under sections
6 and 7 of the Limitation Act. In Jawahu Sin^h \ Udai
Par hash, the Privv Council held that though a suit to set
aside an alienation by the elder of the two sons would be
barred on the giound that he had attained majority more
than three yeais befoie the suit, a suit bv the vounger son,
within three years of his majorily t(‘ lecovei possession of
the piopeity would not be bairecl (a)

(r) See Biinivan Lai v Dava Siinhnr (1909) 11 (. WN, 81 '>

( 5 ) Chintaman v Hhagvan AIR, 1928, Bom, 883

(0 Hanodip Singh v Parmeshivar (1925) 52 I A, 69, 17 Ml, 165,
Shahaniad v Salahat (1927) 8 Lah , 19, liain Kishvn v lialdvo Koen
AIK, 1925, All, 247, Thahur Prasad \ Gulab Kunivar AIK, 1925,
All, 561, \ iswesuara v Surya Rao (1986) 59 Mad, 667, Ranganatha
V. Ramaswami (1985) 58 Mad, 886 FB (alienation by father, when
child cn lentre sa mere)

iu) (1926) 58 lA, 36 , 48 All, 152 See aKo Lai Bahadur v.
Ambika PraMul (1925) 52 I A, 4'1.8, 450, 451, 47 All, 795, where it
was held that even though the suit wa^ barred against out bon, it was
not barred against the othei in 58, 1 A , 86, the High ( ourt had made
a decree m favour of the >ounger son only in respect of two thirds of
the property, excluding the share of the eldei son whose right was
barred The Privy Council approved the decision in Ganga Dayal v.
Mam Ram (1908) 31 AH, 156, and disapproved of [ igneswara v.
Bapayya (1893) 16 Mad, 436 and Doraisanu v Nondisami (1915) 38
Mad, 118 FB , but see Siirayya v Siibbamnia (1927) 53 MLJ, 677;
Jaddu Padlii v ( hokkapu Boddii AIR, 1934, Mad , 469 Where two
minor coparceners are concerned, a suit to set aside an alienation
by a guardian, governed by article 44 of the Limitation Act may, as
the alienation is strictly voidable only and not void, stand on a different
footing, Ankamma v Kamesiiaramma (1935 ) 68 MLJ, 87.

PARAS. 397-398.]

WHO CAN OBJECT.

509

Where a son brings a suit to set aside an alienation of
ancestral property within the meaning of article 126 of the
Limitation Act, he brings it in his character as son and not in
his character as managing member. The right of the manager
to represent the coparcenary as a whole cannot extend to his
representing the rights of individual coparceners to challenge
alienations made by one or more members of the coparcenary.

Where several coparceners are entitled to set aside an aliena-
tion, the view that if the managing member is barred from
bringing the suit, the other coparceners are also barred is open
to doubt. Where an alienation by a father or a managing
member is invalid, no succeeding managing member can, by
his sole consent, ratify that alienation. He cannot therefore
give a discharge in respect of such an alienation without the
concurrence of the others as required by section 7 of the
Limitation Act, though he undoubtedly has a power to enter
into a bona fide reasonable compromise. The touchstone of
the power to give a discharge is, as in other cases, family
necessity or benefit to the estate.

§ 398. Alienations by a sole surviving member of a Right to
coparcenary are of course valid, for the joint family pro- object,
perty is at his absolute disposal as there is no one who
has a joint interest with him in it either by joint acquisition,
or by birth. Therefore, a son or other coparcener
cannot object to alienations validly made by his father or
other managing member before he was born or begotten,
because he could only by birth obtain an interest
in property which had not validly passed out of the family
before he comes into legal existence (v). If at the time of
the alienation there was no one in existence whose assent was
necessary (ic), or if those who were then in existence con-
sented, a coparcener not in existence at that date cannot
object on the ground that there was no necessity for the
transaction (a;). A coparcener who is in his mother’s womb

(v) V enkataramani v. Subramania A.I.R., 1928, Mad., 945; Bhola-
nath V. Kartick (1907) 34 Cal, 372; ChuUan Lai v. Kallu (1911) 33
AIL, 283; Suraj Prasad v. Makhan Lai (1922) 44 AIL, 382; Partab
Singh V. Bohra Nathu Ram (1923) 45 AIL, 49; Lai Bahadur v.
Ambika Prasad (1925) 52 I. A., 443, 47 AIL, 795; Huendra Narayan
Singh V. Sukhdeb Prasad Jha (1929) 8 Pat., 558.

iw) Narain Das v. Har Dyal (1913) 35 AIL, 571; Bishwanath
Prasad Sahu v. Gajadhar Prasad Saha (1918) 3 P.L.J., 168.

{%) Jado V. Ranee (1873) 5 N.W.P., 113; Raja Ram Tewary v.
Luchmun (1867) 8 W.R., 16, 21; Girdharee Lall v. Kantoo Lall (1874)
1 I.A., 32; 14 B.L.R., 187; A mere right to bring a suit, or to make
a representation to Government for the enlargement of a grant, on the
ground of fraud, is not such a right as vests in a son by birth, Chaudri
Ijjagar v. Chaudri Pitam (1881) 8 I.A., 190; sub-nominee, Ujagar v.

510

ALIENATIONS.

[chap. X,

at the time of the alienation and afterwards comes into
separate existence is in law deemed to be in existence at the
time of alienation as much as one born before it and is equally
entitled to challenge the alienation (y) .

Where an alienation was made bv a father or other
manager, without necessity, and without the consent of sons
or other coparceners then living, it would not only be
invalid against them, but also against any son or copar-
cener born before they had ratified the transaction:
and no consent given by them after his birth would
render it binding upon him (zK The reason of the thing
is not of course that the unborn son had any right in
the family property at the time of the alienation, but that
on his birth he acquires a share in the family property as
It then stands If a previous alienation of any portion of
the family properly was validated by consent oi failure to set
It aside in time on the part of the other hiembers of the
family then in existeiue, the properly in which he acquires
a share at birth is diminished to the extent of the poition
thus alienated. If the alienation was invalid, he acquires a
share in the whole property including the portion purported
to be alienated because it was bad and did not in law
diminish the corpus of the joint famih pioperlv iu)

Pitam (1881) 4 All, 120 Where the father had contracted to sell
family land, of which he was not in possession, as soon as he ohtami'd
possession, and after the contract, but before possession, a son was
born. It was held that a decree for specific performance was not
binding on the son, who had not been made a part> to the suit The
Court held that the same decision would have liecn proper in the
case of a son born after contract for sale, but before actual transfer:
Fonnambala v Sundarappayyar (1897) 20 Mad, 354

(v) Minakshi v Virappa (1885) 8 Mad, 89, Ramanna v Venkata
(1888) 11 Mad, 246, Sabapathi v Somasundaram (1893) 16 Mad, 76;
Deo Narain Singh v Gangasingh (1915) 37 All., 162, Sn Datia
Venkatasubba Raju Guru v Gatham Venkatrayudu (1914) 27 MLJ,
580, Mannava Ramarao v V enkatasubbayya AIR, 1937, Mad, 274,
278, Bala Anna v Akubai (1926) 50 Bom, 722, 728; Divarka Das v.
Knshan Ki^hore (1921) 2 Lab, 114

iz) Hurodoot v Veer Narain (1869) 11 WR, 480, Tulsirani v.
Babii (1911) 33 All, 654, 656, Bunwari Lai v. Daya Sanhar (1909) 13
CWN, 815, Hazari Mull v Abani Nath (1912) 17 CWN, 280, Bhup
Kiinwar v Balbir Sahai (1921) 44 All, 190, Chandramani v Jambes-
wara AIR., 1931, Mad, 550, Mansingh v. Karan Singh AIR, 1924,
Nag, 200, Gunaji v Ramchandra AIR., 1926, Nag., 360; Jinwarsa
Gangasa v Giinwantrro AIR, 1936, Nag, 34; see also Jwala Prasad
V Maharajah Pratap Udainath (1916) 1 P L 1 , 497

(a) This passage is cited with approval in In the matter of
Amirthahnga Thevan, AIR, 1928, Mad, 986, 990, 28 M L.W., 634;
Lachhmi Narain v Kishen Kishore (1916) 38 All, 126, also in Bhup
Kunwar v. Balbirsahai (1922) 44 All., 190, 195 » Jinwarsa v. Gunwant
Rao A I R., 1936, Nag , 34.

PARAS. 398-399.]

WHO CAN OBJECT.

511

The rule has been laid down in a number of cases (6)
and Mookerjee, J., treated it as well settled in Hazari Mull
V. Abani Nath (c). It is also supported bv the decision
of the Privy Council in Ramkishore v. Jainarayan (d) .
In that case, out of four sons who sued to set aside an aliena-
tion of ancestral property, three were born subsequent to the
father’s disposition in favour of the alleged adopted son,
Jainarayan, whose joint possession commenced in 1887. The
Court of the Judicial Commissioner had held that Jainarayan’s
adverse possession which ran from 1887 barred the rights
of the three younger sons who were born subsequent to it.
Reversing that decision, their Lordships of the Privy Council
said: “It was, however, conceded before this Board and as
their Lordships think, rightly conceded, that if the first
plaintiff succeeds in the suit, his younger brothers born before
a partition of the estate will be entitled to shaie in the
relief” (e).

An alienation which is invalid when it is made on account
of the existence of other coparceners becomes unassailable on
the death of all of them if no new coparcener is born or
begotten before their death.

Any son born to the alienor, after the death of the other
coparceners can, on his birth, only acquire an interest in his
father’s estate and as that estate was validly carried away
from the family before his birth, he is not entitled to challenge
the alienation. Accordingly in Visweswara v. Surya, where a
father and his son constituted a coparcenary and an alienation
by the former was invalid as made without necessity and
without the consent of the son then living, it was held that
a son born after the death of the non-alienating coparcener
was not entitled to impeach the alienation (/) .

^ 399. All obseivation of the Privy Council in Lai
Bahadur v. Ambica Prasad would seem to confine the right
to challenge alienations of family property to the coparceners
alive at the date of the alienation and to deny such a right
to a coparcener who though born subsequent to the aliena-

(^) Raja Ram Tewarv v. Luchmun (1867) 8 W.R., 15; Hurodoot v.
Beer Narain (1869) 11 W.R , 480, Bholanath v. Kartick (1907) 34
Cal., 372; Bunwari Lai v. Dayasankar (1909) 13 C.W.N., 815, 822;
Tulshiram v. Babu (1911) 33 All., 654; Ponnambala v. Sundarappayyar
(1897) 20 Mad., 354; Chandramani v. Jambeswara A I.R , 1931, Mad.,
550, Dwarka Das v. Krishna Kishore (1921) 2 Lah , 114, 120.

(c) (1912) 17 C.W.N, 280, 285.

id) (1913) 40 I.A., 213, 40 Cal., 966.

(c) (1913) 40 LA, 213, 40 Cal., 966, 980.

(/) (1936) 59 Mad., 667.

Lai Bahadur v.

Ambica

Prasad.

512

ALIE^ATIO^S.

[chap. X,

tioii acquires an interest in the coparcenary property before
the death of the objecting or non-alienating coparceners. In
that case. Rani Dm and Pateshwari, two brothers and
joint managers of the family mortgaged portions of family
property in 1895. In 1904, the properties were sold in dis-
charge of the amounts due to the moitgagee. The sale of
1904 was itself cleaily for the antecedent debts due under
the mortgage of 1895 and was therefore valid as explained
111 Bri] ^ drain s case Ram Dm had two sons m 1895 who
were minors The grandsons, who were the plaintiffs subse-
quently born, sued to set aside the sale m 1919. Their

Lordships said: “‘The respondents, plaintiffs m the suit
are the sons of Awadh Behan (the elder son of Ram Dm).
In 1895, they were still unborn This, as will later appear,
IS one of the most impoitant facts m this case It follows
from it that these two mortgage deeds have alwa\s been
binding on the respondents 1he only joint family estate
to an interest in which they succeeded was an estate which
to the extent of these two mortgages had already been

alienated” (f).

/

The point was not consideied and it nia> not be light

to regard the observation as a decision on the cjuestion.

It would be against the whole current of Indian authorities
which were neither referred to nor considered and cannot
therefore be deemed to be overruled. If, however, the observa-
tion means that coparceners born in the family subsequent
to an alienation befoie the death of the other coparceners
who could challenge it, have no right to the property and
consequently no right to challenge the alienation, it would
conflict with what was said by the Boaid m Ranikishoie
v. Jainarayan (/“) as well as with the cardinal principle
of Hindu law. The coparcenaiy which is inteiested m the
propeitv, not validly alienated, is (onlinually enlarged by
births as it is diminished by deaths Where A makes an
invalid alienation of the family property, his son B is entitled
to obj’ect to it, not because he is in existence but as he is
equally interested m it The propeity is not effectively
carried away from the family except to the extent of the
father’s share in provinces in which he could alienate. B’s
son C born after the alienation would have an equal right
along with his father m the family property which would
comprise ex-hypolhesi the piopcrty which was wrongfully
alienated and therefore still remained in law as part of the

(/i) (1925) 52 I A, 443, 445, 47 All, 795, 797.

(/2) (1913) 40 I A, 213, 40 Cal, 966

VARAS. 399-401.]

EQUITIES.

513

joint family property. It is difficult to see how, if the suit
1)y the grandson is within the period of limitation, as
determined in accordance with the decision in Ranodip Singh
V. Parameshwar (g), his right to the property is lost.

The right to challenge an alienation is only by reason of the
interest in the family property and it is a right in every
member of the coparcenary for the time being. As long as
that right exists in the coparcenary, it would seem to be
immaterial whether the grandson was alive at the date of
the alienation or born subsequently.

§ 400. An adopted son stands in exactly the same posi- Adopted eon.
lion as a natural born son and has the same right to object to
his father’s alienations but his right to challenge an aliena-
tion arises only from the date of his adoption. An alienation
made before his adoption is consequently valid whether it is
a sale, mortgage or gift. So too a bequest by one of family
propel ty is valid as against a son adojited aftei his death (k).

§ 401. According to the recent decisions of the Privy Equities on
Council, an alienation may be upheld in its entirety though
the necessity was only partial, in other words, even though
the whole consideration received was not for necessary
purposes or for the discharge of antecedent debts (i).

Where an alienation made by a father or other managing
member is set aside on the ground that there was no such
necessity, complete or partial as will justify it, it is
made conditional on the refund to the alienee of such
part of the consideration as is shown to have been advanced
by him for necessary purposes or for the discharge of
antecedent debts or as is proved to have been carried
to the joint family assets (/) or applied in paying off
■charges upon the property (A). In the leading case

(g) (1925) 52 LA.. 69, 47 All, 165. see ante §396.

ik) Krishnamurthi v. Knshnamiirthi (1927) 54 I A, 248, 262, 50
Mad, 508, 518; Kalyanasundaram PiUai v. Karuppa Mooppanar
(1927) 54 I.A., 89, 50 Mad., 193 (gift before adoption) ; Veeranna v.

Sayamma (1929) 52 Mad., 398; Sudanund v. Soorjoomonee (1869)

11 W.R., 436; Rambhat v. Lakshman (1881) 5 Bom., 630. an adopted
son’s rights date from adoption, see ante §§ 204, 206.

(z) See ante §367, Ram Sunder v. Lachhmi Narain (1929) 57
M.L.J., 7 PC.

(;) Srinivasa Aiyangar v. Kuppuswami Ayiengar (1921) 44 Mad.,

801, 802, 803.

{k) Nagappa v. Brahadambal (1935) 62 I.A., 70, 58 Mad, 350. In
Marappa Gaundan v. Rangasami Gaundan (1900) 23 Mad., 89, it was
held that though a portion of the consideration was applied in dis-
charge of a mortgage debt binding on the others, the mortgagee, being
a volunteer, could not, as against them, claim a charge on their shares.

See this case explained in Venkatapathy v. Pappiah (1928) 51 Mad,,

824.

35

514

ALIENATIONS.

[chap.

of Modhoo V. Kolbur, Peacock, C.J . laid down that “in
the absence of proof of circumstances which would
give the purchaser an equitable right to compel a refund
from the son, the latter would be entitled to recover without

refunding the purchase money or any part of it We

ought to add that if it is proved to the satisfaction of the Court
that the pui chase mone\ was carried to the assets of the
joint estate, and that the son had the benefit of his share
of it, he could not lecover his shaie of the estate without
refunding his share of the purchase money; so if it should
be proved that the sale was effected for the purpose of
paying off a valid incumbrance on the estate which was
binding upon the son, and the purchase money was employed
in freeing the estate from the incumbrance, the pui chaser
would be entitled to stand in the place of the incumbiancer,
notwithstanding the incumbrance might be su( h that the
incumbrancer could not have compelled the immediate dis-
chaige of it; and that the decree foi the recoveiy by the son
of the ancestral property, or of his share of it, as the case
might be, would be good, but should be subject to such
right of the pin chaser to stand in the place of the
incumbrancer It appears to me, howevei, that the onus lies
upon the defendant to show that the purchase mone) was
so applied. I do not concur with the decision which has
been referred to (/) , in which it is said that ‘in the absence
of evidence to the contrary, it must be assumed that the
price received by the father became a part of the assets of
the joint family'. If the father was not entitled to raise
the money by sale of the estate, and the son is entitled to
set aside that sale, the onus lies on the person who contends
that the son is bound to lefund the purchase money before
he can lecover the estate, to show that the son had the
benefit of his share of that purchase money. If it should
appear that he consented to take the benefit of the purchase
money with a knowledge of the facts, it would be evidence
of his acquiescence in the sale” {m) . The rule laid down

(/) Muddiin Gopal v. Ram Biiksh (1863) 6 WR, 71.

(m) Modhoo v Kolbur (1869) BLR, Sup, Vol. (Full Bencht
Rulings) 1018, 9 WR, 511, followed m Honooman Dutt Roy v.
Bhagbut Kishen (1872) 8 BLR, 358, 15 W R (FB) 6, Makundi v.
Sarabsukh (1884) 6 All, 417, Tejpal v Ganga (1903) 25 AIL, 59;
Moulvie Mahomed bhumsool v. Shetvukram (1874) 2 lA, 7, 17, 14
BLR, 226, Ajit Singh v. Bijai Bahadur (1884) 11 I A., 211, 11 Cal.,.
61; JVenlock v River Dec Co (1887) 19 Q B D., 155, Gangabai
Vamanji (1864) 2 Bom. H C., 301.

PARA. 401.] EQUITIES. 515

in Modhoo v. Kolbur is still good law (n).

Where an alienation by the father is set aside at the Alienatioir
instance of the sons on the ground that it is neither for lather,
necessity nor for antecedent debts, the sons are entitled to
have it set aside without its being made a condition that
they should refund the consideration paid by the alienee to
the father. For until the sale is set aside and the purchaser
becomes entitled to a refund of the consideration, there is
no debt of the father in existence which can be regarded as
an antecedent debt and which his son would be under an
obligation to discharge (o) . In Calcutta however it has
been held that if an alienation were not made for an ante-
cedent debt, the sons could only set it aside on paying
the full purchase money, this being a debt for which their
father would be liable to the purchaser as for failure of
consideration on the sale being cancelled, and for which in
consequence their share of the property would be
ultimately responsible (p). This view is opposed to the
Full Bench decision in Modho v. Kolbur {q) and to the
decisions of the Privy Council which require that there must
in strictness be an antecedent debt to support a father’s
alienation (r).

(n) Per Wallis, C.J., in Srinivasa v. Kuppuswami (1921) 44 Mad.,
801, 803 dissenting from the view of Mitter, J., m Koer Hasmat Rai
V. Sundardas (1885) 11 Cal., 396 that the Full Bench decision in
Modhoo V. Kolbur (1868) 9 W R., 511 is virtually overruled by the
Privy Council decision in Girdharee Lall v. Kantoo Lull (1874) 1 I A.,
321.

(o) Srinivasa Ayyangar v. Kuppuswami Ayyangar (1921) 44 Mad,
801; Virahhadra v. Guruvenkata (1899) 22 Mad., 312, referring to the
words ‘on payment’ in Sabapathi v. Somasundaram (1893) 16 Mad., 76
at 79 as a printer’s error, Madangopal v. Satiprasad (1917) 39 All ,
485; Kilaru Kottayya v. Polavarapu Durgaya (1918) 35 M.L.J., 451,
Daya Ram v. Har Charan Das (1927) 8 Lah., 678, Badham v. Madho
Ram (1921) 2 Lah., 338; Chandra Deo Singh v. Mata Prasad (1909)
31 All., 176. In Jokhu Gosain v. Ganesh Singh A.I.R. 1928 Pat , 54,
the Patna High Court, following Koer Hasmat Rai v. Sundardas (1885i
11 Cal., 386 and distinguishing Srinivasa v. Kuppuswami (1921) 44 Mad.,
801, held that where joint property is sold by father and it is proved
that the purchase money was carried to the assets of the joint estate
and the son had the benefit of his share of it, the son cannot recover
his share of the estate without refunding his share of the purchase
money. Both in 11 Cal., 386, supra and in A.I.R., 1928, Pat., 54, supra
the sons chose to confine their remedy to their own shares excluding
their father’s share.

ip) Koer Hasmat Rai v. Sunder Das (1885) 11 Cal., 396. This
is dissented from m Madan Gopal v. Sati Prasad (1917) 39 All, 485;
(1921) 44 Mad., 801 supra,

iq) (1868) 9 W.R., 511.

(r) Brij Narain v. Mongol Prasad (1923) 51 I.A., 129, 46 All., 95;
Sahu Ram Chandra v. Bhup Singh (1917) 44 I.A., 126, 39 All., 437;
Chet Ram v. Ram Singh (1922) 49 I.A., 228, 44 AIL, 368.

516

ALIENATIONS.

[chap. X,

Alienation by
a manager.

Necessity for
offer to
refund.

Alienation
without
necessity void
or voidable?

§ 402. So too, an alienation by a managing member,
which IS not for necessity can be set aside unconditionally at
the instance of the other coparceners; for where the sale was
made to discharge the personal debt of the alienor, there
can be no equity on the part of the other coparceners, not
being the sons of the alienor to refund the purchase money.
The fact of the person being an innocent purchaser for
value at an auction would make no difference. He had every
opportunity of making enquiry, and must have known the
extreme danger of purchasing an interest which had been
originally bought from a single member of a joint undivided
family under the Mitakshara law (s).

§ 403. A suit to set aside an alienation will not fail on
the mere ground of the absence of an offer to refund such
part of the consideration as may be binding upon the
plaintiflf (t).

§ 401. The question whether an alienation made by a
father or other manager which is neither for a legal necessity
nor for the discharge of an antecedent debt, is void or voidable
has given rise to conflicting judicial opinions fu). Such an
alienation must on principle be invalid as against the other
members of the family from its inception though they can
elect to abide by it. The possession of a pui chaser under an
unauthoiised alienation by the manager will be wrongful
unless it is assented to or ‘ratified’ by the other coparceners.
In provinces wheie the alienor’s own share is bound, it will
be wrongful as to the shares of the other coparceners. If
all that is meant by the proposition that such an alienation
is voidable, is that it is not so absolutely void as to be
incapable of being assented to or ‘ratified’ by the other

(s) Nathu Lai v. Chodi Sahi (1869) 4 BLR, AC J, 15, 19, cf.
Alodhan Knar v. Naurangi Singh AIR. 1938 Pat, 194 (widow).

(t) Bhagivat Dayal v Debt Dayal (1908) 35 lA, 48, 35 Cal,
420. Paparayudu v. Rattamma (1914) 37 Mad, 275, dissenting from
Singam Setti v. Draiipadi (1908) 31 Mad, 153, Arunachala v Kiippa-
nada (1913) MWN, 866; but see Dinanath Ghosh v. Hrishikesh Pal
(1914) 18 C.W.N,, 1303.

(a) Kandaswami v. Somaskanda (1912) 35 Mad, 177 (void). In
the matter of Amirthalinga Thevan A I.R , 1928, Mad, 986 (void);
In re Appavii Naicken AIR, 1931, Mad, 377 (void), Piirushotama
V. Brundavana, ib , 597 (void) , Subba Goundan v. Krishnamachari
(1922) 45 Mad, 4^19 (voidable), Ramasami Ayyar v V enkatarama
Ayyar (1923) 46 Mad , 815, 822 (voidable) ; Vistveswara Rao v.

Suryarao (1936) 59 Mad , 667, 675 (voidable) ; Bhrigu Nath v.
Narsingh (1917) 39 All, 61 (voidable); Jagesar v. Deo Dat (1923)
45 All, 654 (voidable); Imperial Bank v. Mt. Mayadevi (1935) 16
Lah., 714 (voidable but a creditor cannot repudiate it) ; see also
Ramakottayya v. V iraraghavayya (1929) 52 Mad., 556 F.B , 562.

PARAS. 404-405.]

EQUITIES.

517

coparceners, it would be correct though the terminology may
not perhaps be happy. But some of the decisions seem to
go further than that; starting from the position that it is
voidable, they seek to attach to it legal incidents which are
not warranted.

§ 405. It has been held that a purchaser under an invalid Mesne
alienation is not bound to account for mesne profits from
the date of the wrongful sale to him but only from the date
of the repudiation of the sale by the other coparceners (v).

In other words, the possession of the alienee is lawful till
the coparceners disaffirm the transaction. But the distinc-
tion between an alienation which in law is valid until it is
rescinded and an alienation which is invalid unless approved
or ‘ratified’ by the other coparceners is a real one. For
instance, a bona fide purchaser for value without notice will
obtain, in the former case, before rescission, a better title
than his alienor; but in the latter case, before the repudiation
by the copaiceners or the reversioners, his title will share the
infirmity of his alienor’s. The analogy of the widow’s
alienation has been applied to the case of alienations by
the manager. But even in such a case, it has been held in
Bi]oy Gopal v. Krishna Mahishi that the reversioner “may
think fit to affirm it, or he may at his pleasure treat it as a
nullity without the intervention of any Court, and he shows his
election to do the latter by commencing an action to recover
possession of the property. There is, in fact, nothing for the
Court either to set aside or cancel as a condition precedent
to the right of action of the reversionary heir” [w). It was
pointed out in that case that it was not necessary for the
leversioners to pray for a declaration that the alienation by
the widow was inoperative as against them. They may
merely claim possession leaving it to the defendants to
plead and prove ciicumstances of necessity.

In Bhagwat Dayal v. Debt Dayal, the reversioners who
sued to recover possession of property which had been

iv) (1022) 45 Mad., 445 supra; (1923) 46 Mad.. 815, 822 supra.
Deivachilai Aiyangar v. V enkctachariar (1925 ) 49 M.L.J., 317, 321;
(1917) 39 All., 61, supra; Gangabisan v. Vallabhdas (1924) 48 Bom.,
428.

(w) (1907) 34 I. A., 87, 92, 34 Cal., 329, 333 explaining Modhu
Sudan V. Rooke (1897) 24 I.A., 164, 25 Cal., 1; Rangasami v.
Nachiappa (1919) 46 I. A., 72, 42 Mad., 523. The observations in
Ramgouda v. Bhausaheb (1927) 54 I. A., 396, 52 Bom., 1, mean only
what IS stated in Bijoy Gopal v. Krishna Mahishi, The observation
in Hanuman Kamut v. Hanuman (1892) 18 I.A., 158, 19 Cal., 123,
that “the sale was not necessarily void, but was only voidable if
objection were taken to it by the other members of the joint family”
was made in a different context and does not carry the matter further.

518

ALIENATIONS.

[chap. X,

Compensation

for

improveiments.

sold by a widow without necessity, were held entitled to
the usual decree for mesne piofits. Their Lordships
observed: “As the deeds of sale are not good as such,
the claim for mesne profits is well founded” (a:). The
possession of the alienee is adverse from the date
of the alienation under article 144 of the Limitation
Act and not fiom the date when the coparcener chooses to
repudiate it Even in the case of a sale induced by fraud
which IS strictly valid until rescinded, it was held by the
Judicial Committee that the person who elects to avoid it
will be entitled to mesne profits from the date of the sale(y ).
In Banwari Lai v. Mahesh, the Privy Council distinguished
between a case where the sale is set aside unconditionally
and a case where it is set aside on terms and held that in
the former case, the son would be entitled to the usual
decree for mesne profits, though m that case as part of the
consideration was applied for proper purposes, the deeds
were set aside on payment of sums due to the alienee and
therefore the alienee was deemed to be in lawful possession
till they were set aside (z). The sounder view appears to be
that, in the absence of any special equity depending on
the particular facts (a), the coparceners or reversioners who
seek to set aside an alienation by the managing membei or
the widow, as the case may be, will be entitled to mesne
profits from the dale when they become entitled to possession
and their cause of action to recover possession of the property
arises (6).

§ 4( 6. The question whether an alienee would be entitled
to compensation for improvements under section 51 of the
Transfer of Property Act would depend upon whether he
made the improvements believing in good faith that he was
absolutely entitled to the property. The section can not be

(jc) Bha^wat Dayal bingh v Pcbi Dayal il908) 35 I A., 48, 57, 35
Cal, 420, 430

(r) Sate^ui Prasad v Mahant Har Narain Das (1932) 59 I A , 147,
A I.R. 1932 P C., 89. No decree of court setting a‘^ide an invalid
alienalion by a coparcener is necessary nor will a suit to recover
possession of propert> by a coparcener be go\crned by article 91 ot
the Limitation Act

iz) (1919) 45 LA, 284, 41 AIL, 63

(a) See for an instance of a special equity. Ram Charan Lonia v
Bhagwandas (1926) 53 I A, 142, 48 All, 443, where the Judicial
Committee treated an invalid sale as a usufructuary mortgage.

(b) The observation of Stone, J, in Visweswara v. Surya (1936)
59 Mad., 667, 675 that “it is preferable to regard such an alienation
as perfect unless and until it is set aside” appears to he erroneous
though it is open to the coparceners as reversioners to elect to abide
by the alienation and treat it as good.

PARAS. 406407.]

EQUITIES.

519

4 ipplied to a purchaser from a father or other managing
member who had notice of the existence of the other
coparceners and their interests in the property and omitted
to make any enquiry as to the circumstances justifying the
sale (c).

Where the purchaser acts bona fide after making reasonable
enquiries, the purchase itself will be protected. The section
will therefore apply both to a case where he purchases in good
faith but has either no notice of the existence of the interests
♦^if the other coparceners or having such notice, fails to make
proper enquiries as to the necessity for the sale and to a
<ase where he is a transferee in good faith from the original
alienee (c^).

S 107. Where the suit is brought, not by a member Suit by

-of the family to set aside a sale or mortgage, alienee,

but by the alienee who has taken a title which his

alienor had no power to grant, he cannot enforce
it against any member of the family who is entitled to

dispute the act of that alienor. Nor can he obtain
.a decree with a condition annexed, that it is only to be
-executed in case the defendant fails to make him compensa-
tion. His claim for compensation, if he has any, must be
founded on special equities arising from circumstances
applicable to the persons from whom compensation is
•claimed [d) . Where an alienee stands by an alienation which
is only paitially valid, he must be content with the alienor’s
*hare. If he wishes to repudiate the transaction altogether
his only remedy is by suit against the vendor for the return
•of the price paid on the ground that the consideration for
the same has failed (e).

When an objecting coparcener sues to set aside an alienation. Suits by
ihe following rules are, according to the Madras High Court coparceners,
in Venkatapathi v. Pappia Nayakarif), applicable: —

( 1 ) Where the whole of the consideration, even after
being allotted to the alienor’s share only, is grossly
inadequate, the whole transaction may be set aside

(c) Ramappa v. Yellappa (1928) 52 Bom., 307; Kandarpa Nath
V. Jogendra Nath (1910) 12 C.L.J., 391; Nandi v. Samp Lai (1917)

39 All., 463, Hansraj v. Sommi (1922) 44 All., 665, V njbhukandas
V Dayaram (1908) 32 Bom, 32; Sitlenian v. Venkatraju A.I.R. 1925
Mad., 670; Siddappa v. Narasappa 1915 M.W.N., 631.

(c^) Narayanaswami v. Rama Ayyar (1930) 57 I. A., 305, 53 Mad.,

•692; Kidar Nath v. Mathu Mai (19i3) 40 Cal., 555 P.C.; Shiddappa
V. Fandurang (1923) 47 Bom., 696. See post §680.

(d) Nizamuddin v. Anandi Prasad (18%) 18 All., 373.

(e) Marappa Goundan v. Rangasami Goundan (1900) 23 Mad., 89.

if) (1928) 51 Mad., 824.

ALIENATIONS.

[chap. Xr

520

making the consideration proved a charge on the family
property (g). (2) Where the whole consideration is not

grossly inadequate, and can be regarded as the price of the^
alienor’s share but is less than the value of such share, the
transaction may be upheld as the sale of the alienor’s share
only, and the other members who question the tiansactiori
are entitled to recover their shares of the property without
being subjected to any other equity. In such a case, if the
members are divided and the alienor leaves othei heirs than
the membeis who question the transaction, his heirs
may have a right to contribution (A). (3) Where the con-

sideration proved exceeds the value of the alienor’s share,,
the transaction may be upheld as a sale of the alienor’s*
share onlv and for the excess, a charge inav be given over
the shares of the other members.

Agreement

against

alienation.

Sale complete

without

possession.

If the alienation is one by wav of rnoilgage oi charge, the
security will be limited to the amount found to be binding (i) ,

^ 408. An agreement b\ one coparcener not to alienate
his share to au> one except his copaicener has been held to he
valid and enfoiceable (y). Such an agreement however cannot
bind the purchaser for value without notice of it (A), nor
can it be valid as against a purchaser at a sale in execution
of a decree {I)

§ 409. A sale by a father or managing member will b»‘
valid and coin[)lete without delivery ol possession even as
against a subsequent sale by the alienor followed by delivery of
possession It was supposed at one time that a sale will be
invalid if the vendoi cannot and does not give pos-
session and that this was in accordance with the
texts of Hindu law These texts were examined by the
Madras High Couit in Lakbhmi v. Narasimha (m). It is now'
settled by a decision of the Judicial Committee that delivery
of possession is not necessary to complete the title by sale*
“Their Lordships see no reason why a gift or contract of

(g) Rottala Riinganatham Chetty \ Pulicat Ramasivami Chettr
(1904) 27 Mad , 162

{h) Marappa v. Rangasanu (1900 ) 23 Mad, 89

(i) Bhaguat Dayal \ Debt Dayol (1908) 35 I A, 18, 35 Cal, 420

(/) Lakshmi \ Ton (1878) 1 All, 618. See Lachmin v Kote^har
(1880) 2 All, 826

(A) Kanna Pisharodi \ Kornbi ichen (1885) 8 Mad, 381; Ali
Hasan v. Dhirja (1882) 4 All, 518, Trimbak y. Sakharam (1892) 16
Bom , 599.

(/) Golak Nath v. Mathura (1893) 20 Cal, 273

(m) (1866) 3 MH.C., 40, 46 affirmed in (1869) 13 M I.A., 113.

PARAS. 409-410. J SAI,E COMPIvETE WITHOUT POSSESSION.

sale of property, whether movable or immovable, if it is not
of a nature which makes the giving effect to it contrary to
public policy, should not operate to give to the donee or
purchaser a right to obtain possession. This appears to be
consistent with Hindu law. On the principle contended for
by the respondent, so long as he prevents the true owner
from taking possession, however violently or wrongfully,
that ownei cannot make any title to a grantee” (n).

As to mortgages, Narada says: ‘‘Pledges are declared to
be of two kinds, movable and immovable pledges; both are
valid when theie is actual enjoyment and not otherwise” (o).
It is evident that Narada was refeiring to cases where
possession ought to follow the pledge as naturally it would.

§ 410. Sales, mortgages, leases, exchanges and gifts as
well as assignments of actionable claims are as to many
matters now governed by the provisions of the Transfer of
Property Act where it is m force, and as to their form and
requirements, by the specific provisions in that Act and in
the Indian Registration Act, 1908. The second chapter ot
the Tiansfer of Property Act containing the general provi-
sions regulating all transfers of property inter vivos has
now become applicable also to Hindus (/?). To the extent
to which the provisions in that Act are in conflict with
Hindu law. the former will prevail.

(/i) Ka/i(/as V. Kanhaya Lall (1888) 11 I A , 118, 11 Cal, 121,
followed in Mahomed Baksh v. Hosseini Bibi (1888) 15 I.A., 81, 15
(.al , 684, IS/aratnchundcr v. Datarani (1882) 8 Cal, 597, 610. overiulmg
Dinonath v. Auluckmoni (1881) 7 Cal., 753, Modun Mohun v. ¥ut~
tarunissa (1886) 13 Cal., 297, Ugarchand v. Madapa Svmanna (1885)
9 Bom., 324.

(o) Narada 1. 139 (Vol. XXXIII, 77).

(p) Section 3 of the Transfer of Property (Amendment) Act (XX
of 1929). Sectum 61 has also repealed the saving as to Hindus and
Buddhisib in bciliuii 129 of the Transfer of Property Act.

Mortgage.

Transfers now
governed by
statute.

CHAPTER XI.

Division of
bubject

Coparcenary

property

alone

divisible.

Separate

property

indivisible.

PARTITION.

§ 411. The modern law of partition may be divided
into five heads: first, the property to be divided; secondly,
the persons entitled to share; thirdly, what constitutes a
partition; fourthly, the mode of division and fifthly, the
reopening of partition ia). Lastly, the subject of reunion
has also to be dealt with.

§ 412 First. — ^The property to be divided is ex vi
termini the piopcrty which has been pieviously held as
joint property in coparcenary (6).

An adverse claim by title paramount against a portion
of the property, is no obstacle to the division of the whole
including that portion, where the family is in possession of
it (c). Property in possession of the family under a perma-
nent lease is paitible, though the lease itself is liable to be
cancelled or foifeited in certain contingencies {d) Where
properties are allotted to a member on partition, and he is
subsequently evicted from them by an adverse c laimant, the
partition is liable to be reopened in so far as is necessary to
apportion the loss occasioned thereby (c).

Separate property of a member or membeis of the family
cannot be the subject of partition amongst all the copar-

(fl) Partition in ancient Hindu law has already been dealt with
in the chapter on ‘Early Law of Property’ (ch vii) and m treating
of the ‘Joint Family’ (ch. viii), much of what is usually discussed
under the law of partition has been anticipated.

ib) As to what IS coparcenary property, see ante ^§ 275-278, the
right to a partition exists not only when there is unity of possession
and unity of title but also of properties of which persons are m
joint possession under different titles, Bhagivat Sakai v Bepin Behari
Mitter (1910) 37 I A., 198, 37 Cal, 918, dissenting from Mukunda
Lai V. Lehuraiix (1893) 20 Cal, 379 and approving Hemadrinath v.
Ramani Kanta (1897) 24 Cal, 575 F.B., In re Ganga Sagor, Ananda
Mohun (1929) 33 CWN, 1190, 1192.

(r) Sundar v Parhati (1889) 16 I A , 186, 12 All, 51
id) Salimullah v. Frobhat Chandra Sen (1916) 43 Cal , 1118, follow-
ing Bhagwat Sahai v Bepin Behari Mitter (1910) 37 I.A., 198, 37
Cal, 918.

(e) Ganeshi Lai v Babu Lai (1918) 40 All, 374, following Maruti
V. Rama (1897) 21 Bom , 333; Ramakotayya v. Sundara Ramayya (1931)
54 Mad . 883

PARAS. 412414.] PROPERTY BY NATURE INDIVISIBLE.

523

ceners in the family (/) ; but property may be the joint
property of two or more coparceners whether they form a
branch or not and will be divisible amongst themselves though
not between themselves and the members of the wider
-coparcenary (g).

§ 413. An intermediate species of property comprises
properties which by custom or tenure, by crown grant or
by statute aie descendible to a single heir and are indivisible
among the members of the family, in other words, impartible
estates which are the ancestral property of the joint family.
They are dealt with in a subsequent chapter (Ch. XIX).

§ 414. Certain kinds of property are declared to be
indivisible from their nature, such as apparel, carriages,
riding-horses, ornaments, dressed food, water, pasture ground
and roads, female slaves, houses or gardens, utensils, necessary
implements of learning or of art, documents evidencing a title
to property, rights of way, and rights to wells or water (/i).
The ground of the exception seems to have been that they were
things which could not be divided in specie, that they were

ij) As to the several categories of separate propeity, see ante §§ 285,
-275, 278, Mitdkshara, i, 4; Daya Bhaga, vi, 1, V. May., iv, 7 In Bengal,
where a divi'-ion js made during the life of the father, the father has a
moiety of the goods acquired by his son at the charge of the estate;
the son who made the acquisition has two shares, and the rest take
-one a-piece But if the father’s estate has not been used, he has two
shares, the acquirer as many, and the rest are excluded from partici-
pation. Daya Bhaga, ii, §71, per Peacock, C.J , lima Sundari v.

Dwarkanath 2 BLR. (A.CJ), 287, 11 W.R , 72

(g) Penasami Periaswami (1878) 5 LA., 61, 74, 1 Mad, 312;

for instance, property which is allotted at a previous partition to a

member will of course be indivisible as between himself and the
separated mi rnbers, but will be divisible between himself and his own
descendants though the partition would not deprive the separated
members or their descendants of such future rights of succession as
they might afterwards have to that property, treating it as separate
properly quoad them. The doubt that was once raised whether a
son could compel his father to partition ancestral movable property
was long ago settled in the son’s favour ; Lakshman Dada Naik v.
Ramachandra (1881) 7 I.A., 181, 5 Bom, 48; Jiigmohandas v. Mangal-
das (1886) 10 Bom, 528, 578.

(h) “A dress, a vehicle, ornaments, cooked food, water and female

slaves, property destined for pious uses and sacrifices, and a pasture
ground, they declare to be indivisible”, Manu, IX, 219; Mitakshara, i,
4, §§16-27; Daya Bhaga, vi, 2, §§23-30; Smritichandrika, VII, 39-47,
Viramit, Ch. VII, 2-4 (Setliir’s ed , 458-460) , Dig. II, 471; “Water, or a
reservoir of it, as a well or the like, not being divisible, must not
be distributed by means of the value; but is to be used by the co-heirs

by turns”, Mit. I, iv, 21. “The common way or road of ingress and

egress to and from the house, garden or the like is also indivisible”,
Mit. I, iv, 25; Govind v. Trimbak (1912) 36 Bom., 275; Nathubai v.
Bai Hansgouri (1912) 36 Bom., 379; Shantaram v. Waman (1923) 47
Bom., 389. Dr. Buhler’s translation of the term ogakshemam**

which occurs in Manu IX, 219 and in Mit I, iv, 23 is ’property

Impartible

property.

Property
indivisible
from its
nature.

524

PARTITION.

[chap. XI,

Idols and
places of
worship.

originally of small value and specially appropriated to the
individual members of the family; consequently, that if each
were left in possession of his own, the value held by one
would be balanced by a corresponding value in the hands of
another. But as property of this sort increased in value,
the strict letter of the texts was explained away, and it was
established that, where things were indivisible by their nature,
they must either be enjoyed by the heirs in turns or jointly,
as a well or a bridge; or sold, and their value distributed,
or retained by one co-sharer exclusively, while the value of
what he retained was adjusted by the appropriation of cor-
responding values to the others fi).

Where pait of the pioperty consists of idols and places
of worship, which are valuable from their endowments, or
from the respect attaching to their possessor, the members
will be decreed to hold them by turns, the period of tenure
being in proportion to their shaies in the corp.us of the pro-
perty (y). In the case of family idols, the Bombay High
Court directed on a partition that the senior member should
take possession of them and the property appertaining to
them, with liberty to the other members to have access to
them for the purpose of worship (A:). Where there was a joint
light of performing the woiship of an idol, partition was

destined for pious uses and sacrifices’ and it rests upon the explanation
given in the IMit I, iv, 23 and adopted by Haradatta and Nandapandita
in the parallel passages of Gautama and Vishnu. For the different
explanations given by the commentators of Manu, see Dr Buhler’s note
on Manu IX, 219 See Smntichandrika VII, 40 » Katyayana cited in
the Smntichandrika VII, 47 expressly declares “Whatever is visible in
the sliape of houses, fields and quadrupeds shall he divided”,

(/) Brilidspati gives as stated by the Smritichandrika (Vll, 41) a
rational mode of distribution “Those by whom ( lothes and the like
articles have been declared indivisible have not decided properly The
wealth of the rich depends on clothes and ornaments Such wealth
when withheld from partition will yield no profit, but neither can it
be allotted to a single coparcener. Therefore it has to be divided with
some skill or else it would be useless Clothes and ornaments are
divided by distributing the proceeds after selling them, a written bond
concerning a delit is divided after recovering the sum lent, prepared
food^^is divided by an exchange for an equal amount of unprepared
food”. water of a well or pool shall be drawn according to

need” “Fields and embankments shall be divided according to their

several shares A common road or pasture ground shall be always
used by co-heirs m due proportion to their several shares”. Bnh .

XXV, 79-82, 84.

(y) The passage is cited with approval by Rangnekar, J., in

Dattatreya v. Prabahhar AIR, 1937, Bom., 202.

(Ar) Damodar Das v Uttarnram (1893) 17 Bom., 271; A I.R., 1937.
Bom., 202, supra.

PARAS. 414415 .] PROVISIONS FOR DEBTS AND CHARGES.

525

^lecreed by directing the joint owners to perform the worship
by turns (/).

A partition of a dwelling-house will be decreed if insisted Dwelling-
on, but the Court will, if possible, try to effect such house,
an arrangement as will leave it entire in the hands of one
or more of the coparceners (wi). In another case the Court
said: “The principle in these cases of partition is that if a
property can be partitioned without destroying the intrinsic
value of the whole property, or of the shares, such partition
ought to be made. If, on the contrary, no partition can be
made without destroying the intrinsic value, then a money
compensation should be given instead of the share which
would fall to the plaintiff by partition” (n) .

§ 415. Normally the assets actually existing at the date Property
of the disruption of the joint status are the properties available
for division (o). Before the division of the joint estate is
made, it is necessary to make provision for the liabilities of the
joint estate (p), such as (1) the debts due or claims against
the family; (2) charges on account of maintenance of dis-
qualified heirs, of female members and of others who are
entitled to be maintained (^) ; (3) marriages and such other
family ceremonies as have to be provided for (r).

(/) Mitta Kunth Audicarry v. Neerunjan Audicarry (1874) 14Beng
L.R., 166, approved in Pramotha Nath Mullick v. Pradyumna Kumar
Mulhck (1925) 52 I.A„ 245, 260 ; 52 Cal., 809 (where an idol was
consecrated as a household deity and a thakiirbari was dedicated to it) ;
Madan Mohun v. Rakhal Chandra Saha (1930) 57 Cal., 570.

(m) Rajeoomaree v. Gopal (1878) 3 Cal, 514; Sach ndra Kumar
Goswami v. Hem Chunder (1930) 35 C.W.N., 151; A.I.R., 1937, Bom.,
202, supra.

in) Ashanullah v. Kali Kinkur (1885) 10 Cal., 675; Debendra Nath
V. Han Das (1910) 15 C.W.N., 552.

(o) Yajn., II, 117; Narada, XIII, 32; “what is left of the father’s
property, when the father’s obligations have been discharged and when
the father’s debts have been paid, shall be divided by the brothers
in order that the father may not continue a debtor”. Yajnavalkya, ii,

§§ 124, 125; Mitakshara, i, 7, §§3-5; Daya Bhaga, i, §47, in, 2,
§§38-42; V. May., iv, 4, § 4; iv, 6, § 1, 2; v, 4, § 14; W & B, 786-792.
See as to the eight ceremonies. Dig, II, 301; Appendix, I; Kautilya’s
Arthasastra, Shamasaslri’s trans., pp., 198-9; Pranjivandas v. Ichharan
(1915) 39 Bom.. 734.

(p) Under this head come all the complicated questions discussed,
in Chapters IX and X as to whether transactions entered into by one
member of the family bind the whole.

(q) Mt. Bhohbai v. Dwarka Das (1924) 5 Lah., 375 (a coparcener
is entitled to reimbursement before partition of expenses incurred for
common purposes).

(r) Vaikuntam v. Kallapiran (1900) 23 Mad., 512.

526

PARTITION.

[chap. XI

Father's

debts.

No provision
for coparce-
ner’s marriage
expenses

Where the division takes place between the father and the
sons, provision must be made for the discharge of the father’s
debts, neither illegal nor immoral, as well as for other family
debts (5). It has been held that a coparcener who is un-
married at the date of the severance in inteiest is not entitled
at the partition to have a provision made for his marriage
expenses, even where he marries before the deciee in the suit
for partition is made (/) This proceeds not on the view
that marriage is not an obligatory sarnskaia, but on the ground
that when a severance takes place in a joint family, a claim
for the expenses of a prospective mariiage of a sharei cannot
be a liability of the joint estate In the case of an unmarried
brother, he has his share to look to and in the case of an
unmarried son 01 grandson it is a liability of his branch (n).

( 5 ) Sat Narain v Das (1936) 63 lA, 397, 17 LaJli , 644, V enku'
reddi v. Venkurcddi (1927) 50 Mad, 535 FB

(t) Ramahnga v i\arayana (1922) 49 lA. 168, 45 Mad, 489“
reversing (1916) 39 Mad, 587, Venkatarayudu v Sivarama (1935) 58
Mad, 126 holding Srinivasa v Thiruvengada (1915) 38 Mad, 556
and Gopalan v V cnkataraghavalu (1917) 40 Mad, 632 as oveniiled by
49 I A, 168, Pranjiuan v Motirani AIR, 1927, Bom, 651 holding
Jairani v Nathii (1906) 31 Bom, 54 as oveniiled, Ganesh v Shriniias
AIR, 1928, Bom. 211

(u) By parity of rea«^oning, it would follow that no provision need
he made for the exptmses of initiatory ceremonies of copaiceners when
a severance in inteiest has taken place But the Mitakshara 1, vii, 4,
expressly says “By the brethren who make a partition after the
decease of their father, the uninitiated brothers should be initiated at
the charge of the whole estate”. See also Narada XIII, 33 » Brih.
XXV, 21, Jairam v Nathu (1907) 31 Bom, 54, which so far as it
relates to thnad or initiatory ceremonies is not overruled by the decision
in Ramahnga v Narayana (1922) 49 I A , 168 See Pranjiwan v. Moti-
ram, AIR, 1927, Bom , 651 Whether the sacramental rites referred
to in Yajn, H, 124 includt iiiairiage has been the subject of diflerencc
of opinion amongst the commentators The Balaknda of Visvanipa
(page 246), the Viramitiodayatika and the Madanaparijata take the
rites as ending with marriage only (Jha. HLS, II, 389-391). The
Smritichandrika would have it that the ceremonies are those com-
mencing Willi Jatakarma and ending with Upanayana and points out
that while in the case of unmarried daughters the word ‘ceremonies*
denotes marriage as there is no Upanayana for them, in the case of
unmarried brother it does not include marriage, for marriage, etc , are-
not ceremonies that must without fail be performed. (Smritichandrika,,
IV, 43-44), Kamesvnra Sastri v Veeracharlu (1911) 34 Mad, 422;
see ante § 135 The Vivadachintamani and the Ratnakara also say that
the ceremonies must be taken as ending with Upanayanarn The-
Mitakshara is silent but Balambhattd takes the initiatory ceremonies
to include marriage (SHLB page 398, Setlur edn , 659) KautilyaV
Arthasastra requires the marriage expenses of the unmarried brothei^
and sisters to be met from the joint estate before partition (Ganapathi
Sasln’s edn, Bk , II, p. 33, Shamasastri, 198; Jha, HLS, 11, 397).
As to a daughter, Narada says* “They shall maintain her upto the
time of her marriage, afterwards let her husband keep her” (XIII, 27).

PARAS. 415 - 416 .] MODE OF TAKING ACCOUNTS.

527

Provision however should be made for the marriage Provision foi
expenses of unmarried sisters (v). Yajnavalkya says: ‘‘Un- ^^nses of
initiated sisters should have their ceremonies performed by sisters,
those brothers who have already been initiated, giving them
a quarter of one’s own share” («;). The Smritichandrika as
well as the Dayabhaga are equally clear that the separated
brothers must provide a fund for the marriage expenses of
their unmarried sisters (a;). The rule in the Mitakshara that
the unmarried sisters are entitled to a share of the inheritance
after the death of their father has been cut down to a provision
for marriage expenses and maintenance till marriage.

So also, where a partition takes place between son«;, pro-
vision must be made for the funeral expenses of their
mother (y).

Provision for
funeral
expenses of
mother.

§ 416. When all these are set aside, an account must Mode of
be taken of the, entire family property in the hands of all the taking
different members. In general this account is simply an
enquiiy into the existing assets (z). No charge is to be made
against any member of the family, because he has leceived a
larger share of the family income than anothei. provided he
has received it for legitimate family purposes lol. Nor can
the manager be charged with gains which he might have
made, or savings which he might have effected, nor even
with extravagance or waste which he has committed, unless

(r) Subbayya v. Anantaramayya (1930) 53 Mad., 84; Ramakri'^hna
V. Paramesvara (1931) M.W.N , 215, but see Jairam v. Nathu (1907)
31 Bom., 54, regarded as overruled in respect of marriage expenses of
coparceners by the decision in 49 I. A., 168 in Pranjiwan v Motiram
A.I.R., 1927, Bom., 651. See ante § 135.

(w) Yajn., II, 124; Mandlik, 217, “Sisters also who are not already
married must be disposed of in marriage by the brethren contributing
a fourth part out of their own allotments”. Mit. I, vii, 6.

(t) Smritichandrika, IV, 18-22; Dayabhaga, III, ii, 39. So too, the
Vivadachmtamani and the Ratnakara (Mandlik, 217) The Viramit-
rodaya says: “Hence in a partition after the death of the father, the
maiden sisters are entitled to get shares out of the paternal property
and not that they are only to be disposed of in marriage” (II, 1, 21,
Setlur ed., 338).

(y) Vnjbhukandas v Bai Parvati (1908) 32 Bom., 26, Vaidvanatha
V. Ayyaswami (1909) 32 Mad., 191.

(z) Perrazu v. Subbarayudu (1921) 48 I. A., 280, 44 Mad, 656;
Tammireddi v. Gangireddi (1922 ) 45 Mad, 281; Sukhdeo v. Basdeo
(1935 ) 57 All, 949, 956; Jugmohundas v. Mangaldas (1886) 10 Bom,
528; Parameshuar v. Gobind (1916) 43 Cal, 459; Balakrishna v.
Muthuswami (1909) 32 Mad., 271; Ramnath v. Goturam (1920) 44
Bom., 179; Jyotibai v. Lakshmeshwar (1929) 8 Pat., 818; Narendra
Nath V. Abani Kumar (1937) 42 CWN, 77; V aikuntam Pillai v
Avudiappa A.I.R., 1937, Mad., 127. See ante §299.

(a) Abhay Chandra v. Pyari Mohun (1870) 5 B.L.R., 347 F.B.

528

PARTITION.

[chap. XIj

Improvements.

it amounts to actual misappropriation {b). Where advances
aie made to any member for his separate and ex-
clusive purpose for which he would have no right

whatever to call upon the family purse, oi to discharge

his own personal debts, contracted for his own exclusive
benefit without the authority of the other members

and there is no intention of making a present of them

to him, the moneys advanced might be treated as joint family
funds in his hands which are to be brought into the hotchpot
at the division (c). Alienations made by a coparcener, for
his own benefit, of his interest in family property in provinces
where he is competent to do so, should however be taken into
account by including the propeity alienated in the partition
and debiting it to the alienor id) Similarlv, it has been held
that where a member separates from a joint family taking
his share, the other members remaining united, the shares
due, at a subsequent partition, to the various branches must be
determined not lehus sic stantibus but only after taking into
account the earlier division and deducting from the share
of the blanch to which the separating member belonged the
share which was fust assigned to him (ej.

Money laid out by one member of the family upon the
improvement or repair of the propeity, or for any other
object of common benefit, would (onstitute a debt to him
from the rest of the family only if the money which he

{h) Parmeshivar Dube v Gobind Dube (1916) 43 Cal, 459, Bala-
hnshna Iyer v Muthusami Iyer (1909) 32 Mad, 271 See also
Ramnath Chhoturam v. Gotiiram Radhakisan, 41 Bom, 179, Perrazii
V. Arumilli Siibbarayadu (1921) 43 I A., 280, 44 Mad, 656 and
also cases noted in note (z) supra

(r) Damodardas v IJttamram (1893) 17 Bom, 271, Vcllayappa v.
Krishna Moothan (1918) 34 MLJ, 32, The Supreme Court of
Benj^al, in a Dayabhaga case, observed in a judgment -which
IS contaim d in ^oorjeemoney Dasce v Denobundo (1857) 6 MIA,
526, 540 “We apprehend that at the present day when personal luxury
has increased and the change of manners has somewhat modified
the relations of the members of the joint Hindu family, it is by no
means unusual that in the common khatta book, accounts of the separate
expenditure of each member are opened and kept against him, and that
on a partition, even in the absence of fraud or exclusion, those accounts
enter into the general act oiint on which the final partition and allot-
ment are made”. Anantakrishna Aiyar, J , apparently cites this with
approval in Narayana Sah v. Sankar Sah (1930) 53 Mad , 1, 25 F.B.,
but that view is opposed to the very conception of the Mitakshara co-
parcenary and IS against all the later decisions under the Dayabhaga law.
Of course, in a trading family a usage to that effect might exist or
where all adult coparceners are agreed, such a mode of keeping
accounts might in exceptional cases give rise to an implied agreement.

(d) Ayyagari v. Ayyagari (1902) 25 Mad, 690, 717 FB ; Narayana
Sah V. Sankar Sah (1930) 53 Mad, 1, 25 F.B.

(e) (1930) 53 Mad., 1 FB., supra following Manjanatha v. Narayana
(1882) 5 Mad., 362 and dissenting from Pranjivandas v. Iccha Rant
(1915) 39 Bom, 734.

PARA. 416 .] ACCOUNTABLE FOR FRAUD & MISAPPROPRIATION.

529

iiad expended were advanced out of his separate property,
without an intention of making a present of it to the family.
He would then be entitled to reimbursement for his outlay
as well on partition as before it (/).

A member who seeks partition is entitled to an account
of the family property as it stands at the date of
partition, but is not entitled to open up past accounts
or to claim relief against past inequality of enjoyment
of the family property (g). If he alleges and proves
past acts of fraud or misappropriation on the part of the
manager the rule would not apply. He would be entitled
to a full account for the whole period of management, the
object in such a case being to ascertain not merely what the
family property available for distribution is, but what it
should be but for such acts of fraud, misappropriation oi
leckless waste; and in no case does it mean that the other
members of the family are bound to accept the word of the
karla as to what the divisible propeities are. For particular
properties which are proved to have come into his hands,
the manager is bound to account and it is not enough for
him to say that he has no longer got those assets (h). Cases
may also occur where the enquiry as to what the family pro-
perty is at the time of partition may necessarily involve the
taking of past accounts and in such cases, the other members
are entitled to ask for and the Couit can order an account to
be taken of the joint properties. But the taking of such
accounts must proceed on the footing that its object is not to
call upon the manager to justify past transactions, but to
ascertain what is the joint property actually in his hands

(/) Muttuswaniyy. Siibbiramaruva (1863) 1 Mad H.C., 309; Mt.
Hhoh Bai v. Divarha Das (1924) 5 Tali, 375; Satrucherla Ramabhadra
V. S Viiabhadra (1899) 26 I A , 167, 22 Mad, 470, compare Kazint
Ah V. Saduj Ah A.I.R. 1938 P.C., 169.

(g) Tammireddi v. Gan^ireddi (1922 ) 45 Mad., 281 (reversed on
another point in 54 T.A , 136), Krutnayja v. Guravayya (1921) 41
M.L.J., 503, The Official Assignee of Madras v. Rajabadar (1924) 46
M.LJ, 145, Narendra Nath v. A bam Kumar (1937) 42 C.W.N., 77;
Vaikuntam v. Avudiappa A.I.R 1937 Mad , 127, see ante § 299.

(A) ibid “Capital moneys proved to have come Into the hands
of a manager must be considered as available for partition in the
absence of some evidence showing what has happened to them. Mis-
appropriation (of family property) means nothing more than the
expenditure of the money on other than justifiable family expenses”,
46 M.L.J , 145, 147, 118 supra, where a manager tried to secrete out-
standings by taking fraudulent renewals in the names of third parties
he was ordered to account, 41 M.L.J., 503, 510, supra, where a
manager did not satisfactorily account for a large hoard of gold coins,
lie was made accountable practically on the basis of omnia
praesumuntur contra spoliatorem; Venkata Narasimha v. Bkashyakarht
(1902) 29 I.A., 76, 25 Mad.. 367.

36

Right to an
account.

530

PARTITION.

[chap. XI.

Mesne profits.

at the time of partition (i) , As from the date when the right
to partition accrues, however, the manager will be bound ta
render an account of the same nature as would be demanded*
from a trustee or agent The time fiom which such an account
can be demanded would seem to be the date of the severance.
It will be the dale of the first unec]uivocal declaration by a
member of the family of his desire to enforce a partition (/)
So, if a member of a joint family is wrongfully excluded
from the enjoyment of the family property and subsequently
establishes his position as a member, his right of action
accrues at the date of his exclusion, and he will be entitled
as from that time to an account such as would have to be
rendered by a trustee

S 417. No member can have any claim to mesne profits
previous to partition, because it is assumed that all surplus
profits have, from time to time, been apjilied for the family
benefit or added to the familv propel tv II is now well c^stab-
lished that when a cojiarecmei sues for paitition. the court will
not ordinarily awaid him mesne jirofils for any jjeriod jirior
to the institution of his suit (A). Until a severance in status
IS effected, no member of the coparcenary has a defined share,
and consequently he can put foiward no claim for mesne-
profits or for any share of income from the joint family
properties The moment a seyerance takes place, whether
by mutual agreement, or by unilateral declaration of inten-
tion or otherwise, the right to claim mesne profits as from that
moment arises (1) Accordingly, where a suit for partition
is brought, the plaintiff is entitled to mesne profits as from
the date of suit Where a member of the family has been
entirely excluded from the enjoyment of the propeity, or
where it has been held by a member of the family who

(i) Parmeshwar Dube v Gobind Dube (1916) 43 Cal , 4S9;

Hamnath Chhoturam v Goturam Radhakisan (1920) 44 Bom , 179

(y) Sura] Narain v hfbal Narain (1913) 40 I A, 40, 35 All, 80;
Girja Bai v Sadashiv Dhiindira] (1916) 43 J A , 151, 43 Cal , 1031 The
contrary view expressed m Ramnath Chhoturam v Goturam Radhakisan
(1920) 44 Bom, 179 appears to be irreconcilable m principle with
the Privy Council decisions

(/c) Pirthi Pal \ Jawahir Singh (1887) 14 I A , 37, 14 Cal, 493;
Shankar v Hardeo (1889) 16 I A, 71, 16 Cal, 397 For the
right of an alienee from a coparcener, see Maharaja of Bobbili v.
V enkataramanjulu Naidu (1916) 39 Mad, 265, Manjayya v Shanmuga
(1915) 38 Mad , 684 As an alienation does not effect a severance
by Itself, the alienee is in no better position, Trimbak Ganesh v.
Pandurang Gharojee (1920) 44 Bom., 621; see however section 44 of
the Transfer of Property Act. See ante § 405.

(/) Vanjapuri Goundan v. Pachamuthu Goundan (1918) 35 M L J.,
609, Ramakrishna v. Paramesvara A.I R. 1938 Mad, 424 (interest onu
mesne profits).

PARAS. 417418.]

son’s right to partition.

531

claimed a right to treat it as his exclusive property, mesne
profits, even for the period prior to the institution of the suit,
if it is not barred, may be allowed (m) . The same rule applies,
where, by family arrangement, the property is held in
specific and definite shares, the enjoyment of which has been
disturbed (/i).

§ 418 . Secondly, the persons entitled to share. —
Any coparcener may sue for a partition, and every coparcener
is entitled to a share upon partition (o). But some persons
were till the recent Hindu Women’s Rights to Properly Act,
entitled to a share upon a partition who could not sue for
it themselves.

Under the Dayabhaga law the son has no right
to demand a partition of propeity held by his father during
the life of the latter because he has no vested interest in it.
The Mitakshara, on the other hand, expressly declares the

right (p).

The right of a son, a grandson and a great-grandson (q)
under Mitakshara law to a partition of movable and
immovable property in the possession of a father, against
his consent as well as the right of every other coparcener
to demand a partition against the managing member or other
coparceners is well established in all the provinces (r).
In Bombay, however, this rule has been subject to the

im) Per curiam, Konnerav v Gurrav (1881) 5 Bom, 589, 595;
Venkata v. Narayya (1879) 7 I A., 38, 51, 2 Mad, 128, Venkata v.
Rajagopala (1892) 9 I.A., 125, 5 Mad., 236, Krishna v Subbanna
(1884) 7 Mad, 564; Bhairav v Sitaram (1895) 19 Bom, 532;
Annamalai v. Palaniappa A.I.R., 1935, Mad., 266; Where a member
of a family who is divided in status from others is in enjoyment of
some portion of the family properties, while others enjoy other portions,
he is not in law excluded or ousted from those other portions, so as
to disentitle him to his share of those portions, however long their
enjoyment by others; Kumarappa v. Saminatha (1918) 42 Mad., 431,
dissenting from Vishnu v. Ganesh (1897) 21 Bom., 325.

(n) Shankar Bahsh v. Hardeo Baksh (1889) 16 I.A., 71, 16 Cal
397.

(o) As to the persons who are coparceners, see ante §§ 266, 267.

(p) Mit , I, \, 8.

(g) West and Buhler, p. 622, see Masit Ullah v. Damodara Prasad
(1926) 53 I A., 204, 48 All, 518; Suraj Bunsi Koer v. Shea Prasad
(1879) 6 I.A., 88. 5 Cal.. 148.

(r) Nagalmga v. Subbiramawya (1862) 1 Mad. H.C., 77; Subha
Aiyar v. Ganesa (1895) 18 Mad., 179; Laljeet v. Rajeoomar (1873)
12 B.L.R., 373, 20 W.R., 336; Kaliparshad v. Ramcharan (1876) 1 All,
159 F.B ; Jogul Kishore v. Shib Sahai (1883) 5 All., 430 F.B.;
per curiam, Moro Visvanaih v. Ganesh (1873) 10 Bom. H(^, 444, 463;
Jugmohundas v. Mangaldas (1886) 10 Bom., 528,578; Rameshwar Prosad
Singh V. Lachmi Prasad Singh (1906) 31 Cal., Ill; Digamha v. Dhanraj
(1922) 1 Pat . 361.

Coparceners.

Son during
hfe of father.

Grandson and
great-grandson.

532

PARTITION.

[chap XI,

Sons born
after partition.

qualification laid down by the majority of a Full Bench
of the Bombay High Court, in accordance with their inter-
pretation of the Mitakshara (I, v. 3), that a son is not entitled
to ask for a partition in the lifetime of his father, without
his consent, when the father is not separated from his
father or brothers and nephews ( 5 ).

§ 419. Regarding the rights of a son born to a father in
a Mitakshara family after a partition had taken place between
the father and his other sons, different views are expressed
by the Sanskrit wi iters. According to Vishnu and Yajna-
valkya, the partition is to be opened up again, in order to
give the after-boin son the share which he would have had
if he had been in existence at the time (/). According to
Manu, Gautama, Narada and Biihaspati, the after-hoin son
IS to receive the share of the father alone, but if the father
had reunited with his divided sons, he is to share with

them (a) The Mitakshara reconciles the conflict by saying
that the latter texts lay down the general lule, while the
former are limited to the case of a son who was in his

mother’s womb at the time of paililion {v). It is now set-
tled that where a father has, at a pailition with his sons,
reserved a share for himself, a son begotten after pailition
is not entitled to have the paitilion leopencd, but is

exclusively entitled both to the fathei’s shaie and to his

separate or seH-acquired property (ic) .

(6) Apaji V Ramchnndra (1892) 16 Bom, 29 F B. (Telang, J.,
difesenting) , see llie dictum in Rai Rishenc hand v Ab^maida Koer
(1884) 11 I A, 164, 179, 6 Ml. %(), ,S74 “There can I)e no partition
directly between grandfather and grandson whilst the father is alive”;
Jivabai V I adilal (1905) 7 Bom L K, 232, Bhupal v Taianappa

(1922) 46 Bom, 435, the view of Telang, J, is the sounder view, the

passage in the Mitakshara has been rightly interpreted in Subbn v.
Canesha (1895) 18 Mad, 179, 182 “The first part of the placiliim

states the objection and the answer is contained in the t('\t of

Yajnavalkya” In the Punjab, the son cannot by custom enforce
partition during the father’s lifetime Nihal Chand \ Mnhiin Lai
(1932) 13 Lah , 455, Punjab National Ranh, Ltd \ Jagdish AIR,
1936, Lah, 390, 163 IC, 114

{t) Vishnu, XVII, 3, Yajn. II, 122

iu) Manu, IX, 216, Gaut , XXVIII, 29, Nar, XllT, 44, Brih , XXV,
18, 19. A similar view is taken by Jimutavahana, Daya Bh , I, 45;
VII, 10, and Ragiinandana, II, 30, 31, 36

(v) Mit , I, VI, 1-12, Daya Bh , VII, 4, V May, IV. 4, 35-37;
Viramit. p. 92, 94. Apararka, Smriticbandrika (Ch. XIII, 1-11), Kulhika,
Vivadaratnakara, Vivadachintamani, Madanaparijata and the Sarasvati-
vilasa (II, 29) take the same view as the Mitakshara Jha, HLS, II,
125-129, 347-352.

(w) Nawal Singh v. Bhagwan (1882) 4 All., 427; See the subject
discussed, Krishna v Sami (1886) 9 Mad., 64; Narasimha v. Veera-
bhadra (1894) 17 Mad. 287.

PARAS. 419-420.]

AFTER-BORN SON*S RIGHTS.

533

A son who was in his mother’s womb at the time of parti-
tion but was born subsequent to it. is however entitled to
reopen the partition and to receive a share equal to that of his
brothers. For, a son in the womb is in point of law in exist-
ence. If the pregnancy is known at the tune, the distribution
should be deferred till its result is ascertained, or the dis-
tribution may take place and a share equal to that of a son
may be provisionally reserved so as to be allotted to the
after-born son, if any. If the pregnancy is not known, and
a son is afterwards born, a re-distribution must take place
of the estate as it then stands (jc).

S 420. If the father had divided the whole property among
his sons, retaining no share for himself, then the sons, with
whom partition was made, must allot from their shares a
portion equal to their own to an after-born son (y) . This
proceeds on the principle that the unborn son cannot bo
deprned of Ins share in the paternal estate by a pnoi
partition. But the application of this principle is
expressly limited to the case of partition between father
and sons, and there is no warrant for its extension to a son
born to a separated coparcener, other than the father ol the
family, after partition (z). Where the father had three sons,
of whom two were minors, and he made a paitition of the
piopcrty into three shares, of which one was handed over to
the eldest son, and the lather retained in his own hands the
other shares on behalf of the minois. and subsequently he
had another son who sued for one-fouith share of the whole
property, it was held that the suit failc'd against the eldest
son, but was maintainable against the father and the two
younger sons, who were living jointly with him and with
each other {a). In this case there had in fact been no parti-
tion except between the eldest son and the rest of the family
who remained joint.

(a;) Yekeyarnian v. Agniswarian (1870) 4 Mad. H.C., 307; per
Peacock, CJ, Kalidas v. Knshan (1869) 2 B.LR. (F.B.), pp. 118-121;
Hanmant v. Bhimacharya (1888) 12 Bom., 105, 108-9.

(y) 1 W. MacN., 47; Chengama v. Munisami (1897) 20 Mad., 75:
“The word ‘income’ in Yajnavalkya’s text on which the Mit. in I, vi,
8 and 9 bases its conclusion on this point, undoubtedly includes accre-
tions made to the shares taken on partition and gives to the after-born
son a right to obtain his allotment out of the subsequent additions
also.”

( 2 ) Shivajirao v. Vasantrao (1909) 33 Bom., 267; the passage is
cited with approval in Kusum Kumari v. Dasarathi (1921) 34 C.L.J.,
323.

(a) Ganpat Venkatesh v. Gopalrao (1899) 23 Bom., 636.

Son en ventre
sa mere.

After bora
son.

534

PARTITION.

[chap XI,

The son begotten after partition will be a coparcener with
his father and will take the father’s property to the exclusion
of his separated brothers after the father’s death If he
becomes separate during the father's lifetime, he will be
entitled to his share The Vivadaratnakara says: “A son
born after the (othei) sons have become separated fioni
the father, shall take the entire shaie of the father, when the
father is dead, when the father is living, he shall get only
a share out of the falhei's wealth (should he separate from
the father)” ib). So also where the fathei reunites with the
divided sons, the aftei-boin son would be a coparcener with
them, entitled to his share (c)

Right of ^ 421 lender Mitakshara law, the right to a share passes

representation. survivorship among the lemaining coparceneis, subject to
the rule that wheie any deceased copan enei leaves male
issue, they represent the rights of their anc estoi to a parti-
tion id) For instant e, suppose A dies, leaving a son B,
two grandsons E and F, three great-grandsons H, I, J, and
one great-great-giandson Z. The last named will take
nothing, being bevoiid the fourth degree of descent (^ 267).

\

i

(

I)

W

<ledd

1

de id

dejd

1

E

1

F

(;

dead

1

1

\

dead

11

1

1

J i

dead

Z

The share of his ancestor W will pass by survivorship to
the other brothers, B, C, 1), and their descendants, and

(6) Vivadaratnakara, G C Sarkar’s trans Ch XIV, 2, p 50, Jha,
H.LS, 11, 348 A different view of the Mitakshara is expressed by
Sir Barnes Peacock, CJ, in Kalidas v Knshan (1869) 2 Bong LR,
103 F.B , 120, a Dayahhaga case, which is not consistent with the
Mitakshara doctrine of right by birth or with the text of
the Mitakshara referring to the case of the father’s reunion or with
the express statement in the Vivadaratnakara See ante § 352 and note
(;) to It,

(c) As the Mitakshara says “The son, born subsequently to the
separation, must, after the death of his father, share the goods with
those who re-united themselves with the father after the partition”
(I, vi, 7).

(d) It must alwaya be remembered that what passes is not a share,
as in Bengal, but the right to have a share in partition, Viramit, III,
i, 13. “no specific share at all”.

PARA. 421.]

RIGHT OF REPRESENTATION.

535

•enlarge theii interests accordingly. Hence B, C and D will
each be entitled to one-third, E and F will take the third
belonging to C, and H, I, J will take D’s third. Each class
will take per stirpes as regards every other class, but the
members of the class take per capita as legards each other.

This rule applies equally whether the sons aie all by the
same wife, or by different wives (e). But if W had effected Represents-
a partition with A, then, on his death, his fourth would death of
have passed at once to Z, supposing X and Y to have ancestor,
predeceased him.

(e) According to Yajnavalkya, “among grandsons by different
fathers the allotment of shares is according to the fathers” (II, 121).
Briha‘^pdti says “Their sons, whether unequal or equal in number are
dedaied to be the heirs of the shares of the respective fathers” (XXV,
14). Mitakshara, i, 5, § 1; V. May., iv, 4, §§20-22, Smntichandrika viii,
§§ 1-16, Katyayana, Dig., ii, 241; Devala, /6., 242, 243, Narada, xiii,
§25; 1 Stra. II.L., 205; 2 Stra. H.L., 351-357, Manjanatha v.

Narayana (1882*) 5 Mad., 362; Moro Visvanath v. Ganesh (1873)
10 Bom. H.C., 444; Rajnarain Singh v. Heeralal (1878) 5 Cal.,
142, Debt Prasad v. Thakur Dial (1875) 1 All, 105 FB; Kautilya
says in his Arthasastra, “Division of ancestral property amongst des-
•cendants from the same ancestor shall take place calculated according
to fathers”. (Dr. Shamasastri, 197).

In some families, howevei, a custom called Patmbhnga
prevails of dividing according to mothers, so that if A had
two sons by his wife B, and three sons by C, the property
would be divided into moieties, one going to the sons by B,
and the other to the sons by C. Brihaspati refers to it: XXV, 15;
Siirnrun v Khedun 2 S D , 116 (147) Such a custom has been upheld
in the case of Nattukottai Cheltis of a few villages in the Ramnad
District, Palaniappa Chettiar v. Alagan Chettv (1921) 48 I.A., 539, 44
Mad , 740.

The following illustration of the principle of representation
is taken from Sir E. J Trevelyan’s ‘Hindu Law’ (3rd ed., p. 369) : “The
family having descended from two brothers, one half-share must be

A ( dead )

J (dead)

1

D

1

r ■

E

1

Z (dead)

1

1 "1

1 C

1 ■ 1

1

F 1

D. D,

El

1

1

F,

1 1 1 1

1 G, G, G, Gi-

Fi

allotted to each branch. As to B’s branch, D and his sons, Di, D2
and D3, are each entitled to ^ of i e., As to C’s branch, each
^f the sub-branches composed of C’s sons, E, F and G, with their sons
respectively, will be entitled to 1|3 of i.c., IjO, so E and Ei will
-each get % of 1|6„ ic., 1|12, F, Fi and F2 will each get 1|3 of 1|6,
Je, 1|18; G, Gi, G2, G3 and G 4 will each get 1|5 of 1{6, i.e., 1|30.
This illustration will apply to the Bengal school except that under
ihat school the sons do not take during the lifetime of their fathers”*

53(>

Dayabhai^a

law.

Adopted son.

Illegitimate
sons of
dwijas.

PARTITION. [chap. XV

422. These principles require some modification where^
the case arises in Bengal A son can never demand a
partition of property held by his father, but as soon as A,
in the above diagram, died, his property would descend to
his son<^ and their descendants, and would be divisible among
them in the same mannei as above stated If any tojiar-
( ener dies without male issue, but leaving a widow, a
daughter, or daughtei's sons, his share will descend to
them, and will not lapse into the shares of the other mem-
bers as it would do under the Mitakshara law, apart
fromtthe recent A(t(/). The principles of this line of
suc( ession will be discussed in Ch. XIII It is sufficient
heie to say that lepresentation does not extend beyond
daughteis Daughters of the same class inherit to their
fathei pel stupes But daughtei’s sons do not take as heii>
to their mother, but as hens to then grandfathei Conse-
fjuently no daughter's sons take at all, until all the eligible
daughters aie dead; and such sons, where they do inheiit,
take pel capita and not per stupes That is to say, if a
man has two daughteis, A and B, of whom A has one son,
and B has fi\e, on the death of the last daughter the six
sons will take equally (g).

^ 1*2.) While an adopted son takes the same share as
an aurasa son in (ompetition with the natural boin sons ot
hi> adoptiM* fathei 's (opaiceners. he takes a reduced share
in competition with the after-born sons of his adoptive father
amongst th(^ twic'c-boin classes. That shaie diffeis in the
dilferent piovinces (/i I Among Sudras he shaies equally
with the aftei - 1)0111 son in Madras. Bengal and all the other
provinces except in Bombay where he gets one-hfth of the
whole estate'

^ 12 } 1 he rights ol an illegitimate son aie the subject of

special lules in the Mitakshara (tj. Illegitimate sons of the
three higher classes aie entitled to nothing but maintenanc e (y ) .

U) DBh \l, 1, U5, i7, 59, 65, 1 W MacN , 19, 22
Sre post ^556

(h) Thl^ •subject is full> dealt w'ltli in the chapter on ‘Adoption’.,
bee ante § 192.

(0 Ydjn. II, 133-134, Mil, I, xii

ij) Mit, I, XII, 3, Ddvd Bhag, IX, 28, V May, U, iv, 29-31,
Mecllidtithi on Manu IX, 179 (Iha, Vol V, p 158), \ iiaimi p 121,
Chuoturya v. Sahiib Piirhalad (1857) 7 M T A., 18, 4 W.R.

(P.C), 132, Gajapathy \ Gajapathy (1865) 2 Mad H (^ , 369,.
reversed on a different point, 13 M.f A , 497, 6 BLR, 202, 14 W R.
(P.C ), 33; Roshan v Bulwant Singh (1900) 27 I A., 51; 22 All, 191.
The same rule prevails* among the Punjab Tribes, Punjab Customary
Law, II, 161, Ananthayya v Vishnu (1894) 17 Mad, 1^, V ellayappa^
V. Natarajan (1931) 58 LA, 402, 55 Mad , 1. affg , 50 Mad., 340

para.424.]

RIGHT OF IGGEGITIMATE SONS.

537

The illegitimate son of a Sudra by a continuous concubine has
the status of a son and is a member of the family (A;). But
he does not acquire at his birth a joint interest with his father
in the ancestral family properly (Z). He cannot therefore
enforce a partition against his father during his lifetime (/n).
If a partition is made during the father’s lifetime, he may
be allotted a share “by the father’s choice” (/i). But if a
partition is made after the father’s death, ‘the brethren should
make him a partaker of the moiety of a share’ (o). He suc-
ceeds therefore under I he Mitakshara law to the father’s estate
as a coparcener with the legitimate son with the result that
on the death of the latter before partition, he becomes entitled
to the whole estate by survivorship. Conversely, the legitimate
son succeeds to the whole estate by survivorship on the

ik) (1931) 58 LA, 402, mpra The illegitimate son of a

budid by a continuous concubine (dasiputra) is not one of the

eleven secondary sons mentioned by Manu as substitutes for

a son taken in order to prevent the failure of funeral cere-
monies He IS not mentioned in Yajnavalkya’s list. The term

'Saudia in Manu, IX, 160 refers to the Brahmin’s son by his Sudra

wife and not to the dasiputra born to a Sudra. As the illegitimate son
was not a secondary son, he was not a member of the family. The
provisions m the law books for his maintenance, oi for a shai(% were
merely due to a sense of jiiMite and equity. It is doubtful

if Vijnaneswara meant to create a special coparcenary between
the illegitimate and the legitimate sons of a Sudra. The

contrary is indicated by the heirs down to the daughter’s son sharing
with the illegitimate son The distinction between mairiage and
concubinage was as definitely rc*( ognised among the .Sudras as amongst
the Brahmins \Ranoji v. Kandoji (1885) 8 Mad., 557 J. And for
Siidras, mainage is the most importan', if not the only
samskara \Kameswara Sastn v Vevracharlii (1911) 34 Mad,

422, 427 per Krishnaswaini Ayyar, J.1. According to the

Mitakshara it is only the wedded wife that is ilie sapinda

of her husband. Mit. on Yajn, 1, 52, Vidyarnava, 95 The
father and the concubine arc* not sapindas of each other and her son
is not his sapinda in the legal sense, Krtshnayyan v Muttiisami (1884)
7 Mad , 407, 413 4'he view of Muttuswami Iyer, J , in Thangarn
Filial V. Siippa Filial (1889) 12 Mad, 401, that sapinda relationship
presupposes mainage is the ‘■ounder view and not the view of Knmara-
swami Sastn, J, in Subramania v. Rathnavelii (1918) 41 Mad, 44,
65 (FB.). The illegitimate son cannot therefore be regarded as a
sapinda of his lc*gitimate brother, <1899) 12 Mad, 401, supra.

Viswanatha v. Doraiswami (1925) 48 Mad., 944, 954.

(/) (1931) 58 lA, 402, 55 Mad., 1, supra, Jogendra Bhnpathi v.
Nityanand (1890) 17 I.A , 128, 18 Cal, 15; l^ndii v. Baizn (1880) 4
Bom, 37 FB , Ramalinga v Fnvcdai (1902) 25 Mad, 519, Ram Surart

V. Tehchand (1901) 28 Cal, 194, 204, Rajam Nath v \itay (1921) 48
Cal., 643 F.B., Raju v. Arunagin (1933) 64 M L.J , 500

(m) (1931) 58 I A, 402, supra, (1890) 17 I.A, 128, supra, (1902)
25 Mad , 519, supra

(n) Karuppannan v. Bulokam (1900 ) 23 Mad, 16, Packirisnmy v.
Doraiswami (1931) 9 Rang., 266; Mit., I, xii, 2

(o) Yajn. II, 133-134, Mit. I, XII, 1-2, Dayabhaga IX, 29-30; D.K.S.

VI, 32-34; V. May, IV, 4, 32, Raghiinandana, II, 39-40, Dat. Chand,
V, 30, 31; Jha, HL.S, II, 294-295.

Illegitimate
sons of
sudras.

PARTITION.

[chap. XI,

5^8

death of the illegitimate brother (p). According to
the decisions, it is only when the father dies a separated
householder that an illegitimate son is entitled to inherit
his estate but when a father dies an avibhakta, that is,
undivided from his lineal ancestors, brothers or other colla-
terals, he can claim no share in the joint family property.
For, the text laying down the special rule of inheritance
provides that in the absence of legitimate brothers, the
illegitimate son may inherit the whole propeity in default
of the daughter’s son of the deceased — a clear indication that
the Sudra father therein contemplated was one that was
divided from his ancestors and collaterals. It may therefore
be taken as settled that when the father dies a member of an
undivided family leaving legitimate and illegitimate sons, the
latter are not entitled to claim a partition as against the
father’s coparceners (q). In Gopalasami Chetty v. Aruna-
chala, it was held that an illegitimate son was not entitled
to sue for his share of the family property against the adopted
son and the brother of his father (r).

In Velliyappa Chetty v. Nataraja, the Pn\y Council
approving the Madras decisions held that where the father
has left no separate property and no legitimate son but was
joint i\ith his collaterals, the illegitimate son is not entitled
to demand a partition of the joint family property in their
hands, though he is entitled as a member of the family to
maintenance out of that property (5). The legitimate son
of an illegitimate son who predeceased the father or who
died before partition with his legitimate brother is entitled
to his father’s share by right of representation as against
his uncle and if the latter is dead, against his son or
grandson (r).

ip) (1931) 58 I A, 402 approving Ramahnga \ Pavadai (1902) 25
Mad, 519 and Subramama \ Rathnavelu (1918) 41 Mad, 44 FB.;
Sadii V Baza (1880) 4 Bom, 37, Jogendra Bhupathi v NithYanand
(1890) 17 I A, 128, 18 Cal, 15, Sakharam v Shamrao AIR, 1932,
Bom, 234, (1933 ) 64 MLJ, 500, iupra, Bhagwantrao v. Punjaram
AIR 1938 Nag, 1.

(q) W & B, 3rd edn , 72, (1931) 58 I A , 402, approving Ramahnga
V Pavadai (1902) 25 Mad, 519, Ranoji v Khandoji (1885) 8 Mad.,
557; Parvathi v Thirumalai (1887) 10 Mad, 334, Thangam Pillai v.
Suppa Pillai (1889) 12 Mad, 401, Karuppagoiindan v Kumaraswami
Goundan (1902) 25 Mad, 429, Gopalaswami v Arunachala (1904) 27
Mad, 32, Shame Shanker v Rajaar Suami (1899) 21 All, 99;
Rathinasabapathi v Gopala (1929) 56 MLJ, 673.

(r) (1904) 27 Mad, 32 approved in (1931) 58 I A , 402, supra.

is) (1931) 58 I A, 402, 414, supra

it) Ramahnga v. Pavadai (1902) 25 Mad, 519, cited with approval
in (1931) 58 I A, 402, supra. Jolly, T. L., L 185-186; W & B, 3rd
edn , 72, 82, 83, 390. This right of representation has been applied
by analogy.

PARAS. 425-426 ] PARTITION WHEN SOME ARE MINORS.

539

§ 425. Where a father leaves no legitimate male issue,
the illegitimate son is entitled to inherit the separate estate of
his father for a half share along with his widow, daughter
or daughter's son and in their absence, he is entitled to the
whole estate Under the Mitakshara law, the illegitimate son
is entitled to half of the share which he would have taken
had he been legitimate (m). In competition with the legiti-
mate son therefore he would be entitled to one-fourth share
of the whole estate and is entitled to an equal share with
the widow, daughter or daughter’s son (v). In Maha-
raja of Kolhapur v. Sundaram, where there was one
adopted son and six illegitimate sons, the former was
held entitled to four-sevenths and the latter to three-sevenths
of the whole estate (w). The Dayabhaga rule based on the
text of Yajnavalkya is the same: “without such consent, he
shall take half a share; as Yajnavalkya directs” (:r).

§ 426. It >s now quite settled that a valid partition may
be made during the minority of one or more coparceners (y) .
This follows from the admitted right of one copaicener to
claim a partition. If a partition could not be made during
the minority of one or more coparceners so as to bind them,
a partition could hardly ever take place. Of course the
interests of the minor coparcener ought to be represented by
his guardian or some one acting on his behalf though the
fact of his not being so represented would be no ground
for opening up the partition, if a proper one in other res-
pects (z). If the partition were unfair or prejudicial to
the minor’s interest or where there are no means of testing
ks validity as against him, he will be entitled on his attaining
majority, by proper proceedings, to set it aside so far as

(u) Kamulamnial v. Visvanathasivami (1923) 50 I A., 32, 46 Mad.,
167.

iv) ibid For share in competition with the widow now under
the Act, see post § 529.

iw) (1925) 48 Mad., 1.

(;r) Dayabhaga, IX, 29-31 citing Yajn. II, 134; D.K.S., VI, 32 35.

iy) Balkishendas v. Ramnarain (1903) 30 I.A., 139, 30 Cal., 738;
Nallappareddi v. Balammal (1864) 2 M.H.C.R., 182; Chanurappa v.
Danava (1894) 19 Bom., 593; Lalbahadur v. Sispal (1892) 14 All, 498;
Awadh V. Sitaram (1907) 29 All., 37; Mohansingh v. Mt. Gurdevi
(1931) 12 Lah., 767; Rangasayi v. Nagaratnamma (1934) 57 Mad.,
95 F.B.; Dnyaneshwar Vishnu v. Anant Vasudeo (1936) 60 Bom., 736.
The legality of a partition during the minority of some of the copar-
ceners IS recognised by Baudhayana, who says that “the shares of
sons who are minors, together with the increments thereon should be
placed under good protection until the majority of the owners” (II, 2,
3, 36):

( 2 ) Bhagwati Prasad v. Bhagwati Prasad (1913) 35 All., 126.

Share on
partition.

Mitakshara

law.

Dayabhaga

law.

Minority
not a bar.

540

PARTITION.

[chap. XI,

Minor’s suit
for partition.

Absent

membei^

regards himself (a). A partition effected without reserving
any share for a minor is invalid as against him. In such a
case, It would seem that so far as he is concerned, he
will continue to be an undivided member (6). Where
the partition is in status only, and not by metes and bounds,
the minor will of course be bound as he cannot attack such
a paitition meielv on the ground that it ought not to have
been entered into when he was a minor.

S 427. A suit on behalf of a minor coparcener for parti-
tion will he if the inteiests of the minor are likely to be
piejudiced b) the property being left in the hands of the
other copareeneis, as foi instance, wheie the property is not
being properl) managed, or where the minor’s rights are
denied, oi where the manager declines to piovide for the
minor’s maintenance. The Court has a discietion in the matter
and will not ordinaiily pass a decree for partition in a suit
bi ought by the next friend of a minor unless it finds that
the partition is for the benefit of the minoi as advancing his
interests oi piotecting them from danger (c). The test always
IS whether a paitition in the circumstances is for the benefit
of the minor {(/)

^ 12d An absent coparcener stands on the same footing
as a minoi The meie fad of his absence does not prevent
partition But it throws upon those who effect it the obliga-
tion to show that it was fair and legally conducted, and
the duty of keeping the share until the lelurn of the absent

(a) Kalee Siinker v Denendra (1875) 23 WR, 68, Damodardas
V Vttanx Ram (18931 17 Bom, 271, C.hanvirappa \ Danava (1894l
19 Bom, 593, Yechun Ramamurthi v Yeihun Rnmamma (1915) 30
MLJ, 308, ^arainikiitti v Achuthankutti (1918) 42 Mad, 292,

881, Vcliithakd! ( hirudevi \ Veluthakal Tarwnd (1916) 31 MLJ, 879;
Faramnsivani PiUai v Meenakshisundaram Pilltn (1922) MWN,
732, (1934) 57 Mad., 95, 134, supra, Aivadh v Sitarnm (1907) 29 All,
37 (where a parlition deed among adults alone gave certain beneh^s
to a minor member of the family, he can, on attaining age sue to

enfoue the deed, though he was no party to the partition deed)

ib) Krishnabai \ Khangowda (1894) 18 Bom, 197, approved in
Choudhurv Ganesh \ Mt Jewach (1903 ) 31 I A , 10, 31 Cal, 262

(c) Bathuo \ Mankorebai (1907) 34 lA, 107, 31 Bom,

373 affirming 29 Bom, 51, (1934) 57 Mad, 95 FB, supra:

bvami Ayyar v Chockalingam (1864) 1 M If (^ , 105, Kamakshi

Ammal v. (Judainbara (1866) 3 MHCR, 94, Alamelu v.

Arunachala (1860) 3 MHC, 69, Thangam Pillai v Suppa Pillai
(1889) 12 Mad, 401, Mahadev v Lakshman (1895) 19 Bom.,,

99, Bachoo v Khiishaldoss (1902) 4 Bom LR, 883, Bhola Nath v.
Ghadiram (1907) 29 All, 373, Shadagopa v Thirumalaiswami (1915)
30 I C , 272, Palani v Kasi (1918) 50 I (]] , 552, Sri Ranga Thatachari
V. Srinivasa (1927) 50 Mad, 866, Damodar v Senabutty (1882) 8 Cal,.
537, see also Kishan Lai v. Lachmi Chand A.I.R., 1937, All, 456.

(d) Rangasayi v. Nagaratna (1934) 57 Mad., 95, 141 F.B., supra.

PARAS. 428-429.]

SHARES FOR WOMEN.

541

member (e). The right to receive a share of property
<livided in a man’s absence is laid down as extending to his
descendants to the seventh degree. But, of course, it would
now be regulated by the law of limitation (/).

§ d29. The interests of the women of the family, whethei
wives, widows, mothers or daughters, where a partition took
place at the will of others were specially safeguarded by the
Sanskrit writers. Yajnavalkya says: “If he (father) makes
the allotments equal, his wives to whom no stridhana has
been given by the husband or the father-in-law must be made
partakers of equal portions” (g). Explaining this text, the
Mitakshaia says: “When the father, by his own choice, makes
all his sons partakers of equal portions, his wives, to whom
peculiar property had not been given by their husband oi
by their father-in-law, must be made participants of shares
equal to those of sons. But if separate propcily have been
given to a woman, the author subsequently directs half
a share to be allotted to her: “Or if any had been given,
let him assign the half” (A). Referiing to paitition after
the death of the father, Yajnavalkya says: “When sons divide
after the death of the father, the mother should also receive
an equal share” (i). On this the gloss of the Mitakshara
is: “Of heirs separating after the decease of the father, the
mother shall take a share equal to that of a son; provided
no separate property had been given to her. But if any had
been received by her, she is entitled to half a share, as will
be explained” (y). The comment of Visvarupa on the text
of Yajnavalkya is: “If equal shares are allotted by the

(e) 1 Stra. H.L., 206, 2 Stra. ILL, 341; Dig., II, 511.

(/) Dayd Bhdga, vin, DKS, ix See Art TX of 1908, sched. I, arts
127, 144 Govind Rao v Rajabai (1930) 58 1 A., 106; Brih., XXV,
22-24, Vivddachintamani, 241.

(g) Yajn. II, 115 (Mandlik, 212), Mit. I, ii, 8, I, vn, 1.

ih) Mit. I, ji, 9

(/) Yajn. II, 123; Brih XXV, 64 “But on Ins death, the mother
shall take a son's share The mothers shall share equally with the
sons, the maidens shall take fourth part shares” (Jolly's trans S B E.,
Vol XXXIIl, p 379). Mr. Colebrooke’s translation of the text of
Brihaspati is different. Dig. II, 244. The term *mata\ ‘mother’, is
intended to signify both the mother and the stepmother. Vijnanesvara
in I, VI 1 , 1 considers the term *mata as standing for father’s wives
generally so as to include a stepmother. See Mandlik, 217 note. The
Mayukha follows the Mitakshara, IV, iv, 18.

(;) Mit. I, VII, 2, Smritichandrika IV, 7-17; Sarasvativilasa para.
116. The Smritichandrika and the Sarasvativilasa construe the text to
mean that where a mother by means of her own separate property is
able to maintain herself and perform religious duties, she can take
no share out of her husband’s property; but where it is insufficient
for such purposes, she is to take a share not equal to that of a son, but

Shares for
Women.

Wife.

Widowed

mother.

542

PARTITION

[chap. XI,

Grandmother.

Hindu
Women’s
Rights to
Property
Act.

father, the widows of his sons and grandsons and his own
wives to whom no stridhana had been given by their husband
or father-in-law or himself, should be made partakers of
their husband’s share” (k) ,

Both Nilakantha and Jagannatha cite a text of Vyasa:.
“The sonless wives of the father are declared equal sharers;
and so are all paternal grandmotheis declared equal to the
mother” (/), Nilakantha adds, “by the word ^sarvah\ all,,
even step -grandmothers are included”.

§ 430. By a recent Act of the Legislature, the Hindu
Women’s Rights to Property Act, the widow of a deceased
coparcener has in the joint family property the same interest
as he himself had as for a Hindu woman’s estate and has the
same right to claim partition and allotment ol a share to her
as fully as a male coparcener The Ait also pi ov ides that
on the death of a man governed by the Dayabhaga law leaving
any property, as well as on the death ol a Mitakshara Hindu
leaving separate piopeity, his widow or if there is moie than
one widow, all his widows together aie even when he leaves
male issue, entitled to the share of a son in lespecl of such
property when he dies intestate Similar provisions are
made by the Ad in favour of the widow of a predeceased
son and in favoui of the widow of a ptcdci eased son of a
predeceased son It is cleai that where he leaves more than

less than that, proportionate to her wants According to the Sarasvali-
vilasa, tnis was also the view of Apararka Madhava dissents from,
this view “What lias been said by some, that the text ‘The mother

also shall take a share’, means that she takes only what is necessary

for her livelihood, is not correct, because, the words ‘share’ and ‘equal’
would then be meaningless Then it is said that if the wealth is large,
she takes what is necessary for her livelihood, but if the wealth he

small, she takes an equal share That too is wrong, because sucti a view

results in want of uniformity” (Parasara Madhaviya para 36) The
Viraniilrodaya considers the share allotted to the wife as a gift through
affection (II, 10, 19, S( tlur’s ed , 315, 318) Tlie Vivadachintaniani
says “A share of the heritage shall be allotted with the brothers to
the widows who have no offspring but arc supposed to be pregnant,
to be held by them until they severally bear sons”. By ‘widows’ are
meant, the wives of the deceased brothers A shaie must be given to
a brother’s widow who is likely to bear a son and after her delivery,
that share belongs to her son, but if no son be brought forth, the
said share shall be taken by her husband’s brothers, ‘mother’ (Janani)
means one who has male issue, ‘mothers’ (Matarau) means stepmothers^
who have no male issue. These females shall be equal sharers with
the sons (Vivadachintamam 239, 240) . Vivadaratnakara II, 15 page 7.

(/c) Visvarupa, page 246 (Tnvandnimt edn.) “According to the
opinion of the Misras, where a father has allotted lesser shares to hisy
sons and reserved the greater portion for himself, equal shares must
be made up to his wives from his own portion” (DKS. VI, § 27, see
also 1 W. MacN, 47).

(/) V. May. IV, iv, 18, Dig, II, 243.

PARAS. 430431 .]

SHARES FOR WOMEN.

543

one widow, all of them together will be entitled only to one
share in modification of the existing law. They will also be
entitled like the widow of a deceased coparcener to claim
a partition and allotment to them of the shares to which
they are entitled. The interest which they take will be the
limited interest of a Hindu woman. The provisions of the
Act are set forth and discussed in a separate chapter (m) .

As the Act does not apply to cases of partition under the
older law, it becomes necessary to state the law as it stood
before it.

^ 431. A wife however could never demand a partition Wife,
during the life of her husband, since, from the time of marriage,
she and he are united in religious ceremonies (n ) . This is
in accordance with the fundamental rule of Hindu law as
stated in the text of Harita as quoted by the writers: “Theie
can be no partition between husband and wife” (o).

The Dayabhdga says: “when paitition is made by brotheis
of the whole blood, after the demise of the father, an equal
share must be given to the mother. For the text expresses:

‘The mother should be made an equal sharer’ ”. Jimutava-
hana considers that the term ‘mother’ does not include a
stepmother (p). The Viiamitrodaya also takes the same
view (q ) .

In Southern India, the rules of the Mitakshara law Obsolete m
allotting a share upon partition to wives, widows, mothers Southern
and grandmothers have long since become obsolete (r) owing
to the influence of the Smritichandrika and the Sarasvali
Vilasa which follows it and Apararka. The Smritichandrika
holds such a share to be merely an assignment by way of
maintenance ( 5 ). Elsewhere, the Mitakshara rules have been
in force.

(m) ante §§49, 50; see post §§589-592.

(n) Punna Bibee v. Radhakisen (1904) 31 Cal, 476. PratapmuLl
Agarwalla v. Dhanabati (1933) 63 I. A., 33, 63 Cal, 691 revg. (1934)
61 Cal., 1056, Srimati Sabitn v. Mrs, F, A, Savi (1933) 12 Pat., 359,
426.

(o) The same text is to be found in Apastamba II, vi, 14, 16;
Viramit. II, 10, Setlur’s ed. 318; Smritichandrika IV, 11.

(p) Dayabhaga, III, 11 , 29-32; D.K.S., VII, 3, 5, 6; Raghunandana,
II, 17.

iq) Viramit II, 19 (Setlur’s ed. p. 334).

(r) Stra H.L., 5th ed., 178 note (a) ; 1 W. MarN., 50. Muttu-
vengadachellaswamy Monigar v. Thumbhayaswamy Dec. M.S.U. 1849, p.
27; Venkatammal v. Andyappachetty (1883) 6 Mad., 130, 135; Man
V. Chinnammal (1885) 8 Mad., 123; Subramanian v. Arunachellam
(1905) 28 Mad., 1, 8.

( 5 ) Smritichandrika, IV, 4-17; Sarasvativilasa, §§ 114-116.

544l

Wife’s share
under the
Mitakshar.i
law

Under the
Dayabhjga
law

Mother’s share
under the
Mitakshara
law

PARTITION. [chap. XI,

According to the Mitakshara law, a wife is entitled on
a partition between her husband and his sons to a share
equal to that of a son; but she cannot enforce a partition.
She may either be the mother or the stepmothei of the
sons (^). The value of any stridhana given to her by her
husband or father-in-law has to be deducted from her
share (ii) . The Viraimtrodaya takes the expression ‘husband’
or ‘father-in-law’ as illustrative so as to comprise all the
stridhana property given to her by all relations ft;) . The
right of the wife to a share on partition, where it exists, is
unafTerted by the recent Act.

Of course no question of wife’s share, as of right, can
aiise under the Dayabhaga law, foi the fathei is the absolute
owner of the propeity and the text of Jimutavahana (iv)
only lays dow^n a moral precept Should he, however,
elect to paitition his estate between himself and his sons,
it would seem that a wife should be allowed a share equal
to a son’s, if she be without male issue hut not ‘otherwise (x).
But as the father’s poweis aie absolute over his property, he
can make an unequal partition (y)

^ 1)2 lindei the jVIitak‘?hara law, when a partition takes
place aftcM the father’s death between the sons, the mother
including the stepmother is entitled to a share ecjual to that
of a son (z). As in the case of the wife, the stridhana

(f) Sumrun Thahiir \ C hunder Mun Missir (1882) 8 Cal, 17;
Sunder Bahu v Monohtir ImI (1881) 10 (M. R , 79, Punna Btbce v.
Radha Kissen (1904) 31 Cal, 476, Dulnr Koeri v Dwarhanath (1905)
32 Cal, 234, Jairom v Nathii (1907) 31 Bom, 54 (stepmother),
Partap Singh v Dahpsingh (1930) 52 All , 596, Hosbanna v Devanna
(1924) 48 Bom, 468 ( &lepinotlu^r) , Snmati Sabifri v Mrs F A Save
(1933) 12 Pat, 359, 426, PratapmuU v Dhanabati (1936) 63 I A, 33,
63 Cdl , 691, reversing (1934) 61 Cal, 1056, Hushensab Rajesab v.
Ba^appa (1933) 34 Bom LR, 1325

iu) (1907) 31 Bom, 54, supra y (1933) 34 Bom LR, 1325, supra

(r) Viramit II 1. 10 (Setlur's ed 316) But see Jagobondhu
Pal V. Rajendranafh (1921) 31 CLJ, 29 where the Viramilrodaya is
not referred to The view of the Mitakshara that if there is any
stridhana tlie motln r is entitled only to a half-«-hare aigueb in favour
of Its being only a provision for maintenance
(w) Daya Bh III, ii, 29

{x) Sorolah Dosset v Bhoobun Mohun (1888) 15 Cal, 292, 306.

(y) Juggomohun v Neemoo, Morton, 90, see ante §353; See
Bhattacharya H L , 2nd ed , 360-361

(z) Judoonath v Bishonath 9 WR, 61, Mohabeer v Ramyad 12
B L.R , 90; 20 WR, 192, Laljeet v. Rajeoomary ib , 373, 20 WR,
336; Pursid v Honooman (1878) 5 Cal., 845; Sumrun v. Chundar Mun
(1881) 8 Cal, 17, Knshon v Mom Mohun (1885) 12 Cal, 165;
Chowdhry Ganesh v. Mt Jeivach (1904) 31 I A, 10, 31 Cal., 262.
Damoodur v Senabutty (1882) 8 Cal, 537, Isree Pershad v. Nasib
Kooer (1884) 10 Cal., 1017, Damodar Das v. Uttamram (1893) 17 Bom.,

J?ARAs. 432-4,3 1 ]

SCARES FOR WOMEN.

545

received by a widow from her husband or father-in-law must
be taken into account in determining her share (a). Under
the Dayabhaga law, a widow who is without male issue is
not entitled to a share on partition as under the Mitakshara
law : It does not allow any share to a sonless stepmother on
a partition between her stepsons (6).

§ 4-3,». Similarly a patcrndl grandmother including a
step-grandmother is, according to the Mitakshara law, on a
partition between the grandsons, entitled to a share equal to
that of a giandson (c). So also she would be entitled on
a partition between her son and the son of a predeceased
son (d). It has been held m Allahabad and Bombay that
on a partition between her son and his sons, she is not entitled
to any shaie (e). Bui in Bengal and Mithila she has been
held entitled to a share on such a partition (/) .

^ 434. Neither the wife, noi mother nor grandmother is
entitled to enforce a partition; the sons have a perfect right
to remain undivided as long as they choose. Any alienation
of property made by the coparceners without their consent

271, Vithnl V. Prahlad (1915) 39 Bom., 373 (paternal step-grand-
mother), Harnarain v. BishamOhar (1915) 38 All, 83 (stepmother).
Ram Pearl v Han Dutt Al.K., 1933, All., 562, legh Indar Singh v.
Harnanuingh (1925) 6 Lah., 457 (stepmother) ; Chowdhury Thakur
V. Mt. Bhagbati Koer (1905) 1 C.L.J., 142 (stepmother) , Babhist
Narayan v. Bindeshwan A.I.R., 1926, Pat., 537, Manchharam v. Dattu
(1920) 44 Bom., 166 (where a partition takes place between the
legitimate and the illegitimate sons, the mother of the former has
been held entitled to a share). A mother is entitled to a shire
on a partition lietwcen the sons and the alienee of one or more of
them, Bilaso v. Dina Math (1880) 3 All, 88, Beti Kunwar v. Janki
Kunwar (1911) 33 All, 118; Amritlal v. Maniklal (1900) 27 Cal.,
551, Jogendra v. tidkiunan (1900) 27 Cal., 77.

(а) Jodoonath v. Brogonoth (1874) 12 Beng. L.R., 385; Kishori
V. Mom Mohan (1886) 12 Cal, 165, Jogobandhu Pal v. Rajendranath
Chatter jee (1921) 34 CLJ., 29 (stndhana received from her own fathei
was not deducted) » but see the Viramitrodaya 11, 1, 10 already
referred to.

(б) Daya Bh. Ill, 2, 30, Damoodur v Senabutty (1882) 8 Cal., 537,
542; Hemangini v. Kedainath (1889) 16 l.A , 115, 16 Cal., 758; Tegh
Indar Singh v. Harnamsingh (1925) 6 Lah., 457.

(c) Vithal V Prahlad (1915) 39 Bom, 373 (step-grandmother).
Kanhaiyalal v Gaura (1925) 47 All., 127, Snram v. Haricharan
(1930) 9 Pat., 338 (step-grandmother).

(d) Babuna v. Jagat Narain (1928) 50 AIL, 532; Ram Peari v.
Han Dutt A.1 R., 1933, AIL, 562, distmg. (1912) 34 AIL, 505, infra

(e) Shea Narain v. Janki (1912) 34 AIL, 505, Jamnabai v. Vasudev
(1930) 54 Bom., 417.

(/) Sibbosoondery ▼ BussooniuU) (1881) 7 Cal., 191 (a Dayabhaga
case) ; Budry Roy v. Bhagwat (1882) 8 Cal., 649 (a Mitakshara case) .
Kishori V. Mom Mohun (1886) 12 Cal., 165; Puma Chandra v. Sarojini
(1904) 31 Cal,, 1065 (Dayabhaga case) ; Krishnalal v Nandeshwar
(1919) 4 P.L.J., 38.

37

Sonless
widow under
Dayabhaga.

Paternal

grandmother.

Women can-
not enforce
partition

546

PARTITION.

[chap. XI,

Widow under
Dayabhaga

will therefore bind the wife, mother or grandmother as they
do not become owners of their shares till an actual division
of the joint estate (g) In Pratapmull v. Dhanabhati, it was
held that even a preliminary decree in a paitition suit declai-
ing that a wife was entitled in severalty to one-third share
of the properly did not affect a consent decree made on a
moitgage, executed by hei husband and son, of joint family
properly ‘'According to the Mitakshara law, the mother or
the grandmothei is entitled to a share when sons or grand-
«ions divide the family estate between themselves, but she
cannot be recognised as the owner of such share until the
division IS actually made, as she has no pre-existing right in
the estate except a right of maintenance” ( /z ) .

When a man leaves sons by diffeienl wives, on a paitition
between them, both mothei and stepmother shaie,
under the Mitakshara lav^, eipially with all the sons;
so too, where all the sons are by one wife and the other
wife has no sons (i)

^ tdS \ widow imdei lh<‘ Dayabhaga law becomes ihc
hen of her husband, if he leaves no male issue whethei he is
divided or not She is a cojiarcenei with her deceased
husband’s biotheis or othei copaiceners and can herself sue
for a partition ij)

The Calcutta High Couil, howevei, has laid it down that
owing to the special natuie of a woman’s estate, it would be
the duty of a Court, before decreeing paitition in favour of a
widow, to see that the interests of the presumptive heir are
not affected by the decree The Court ought to be satisfied
that It IS a bona fide claim undei such ciicumstances as
render paitition desirable and that she would properly
leprescnt the estate (A:). But now imdei the Act she has
the same right of partition as a male ownci The same

ig) Pratapmull v. DhanabhaU (1936) 63 1 A., 33, 63 Cal., 691

{h) ibid, 44, approving of the decision of Milter, J, in Shea
Dyal V Judoonath (1868) 9 WR, 61.

(z) Damoodar v benabutty (1882) 8 Cal., 537, Damodardas v
IJttani Ram (1893) 17 Bom, 271.

(/) F. MacN., 39, 59, 1 W. MacN., 49, Dhurm Das v. Mt.
bhama Soondri (1843 ) 3 MIA, 229, 241, 6 WR (PC), 43, Shib
Pershad v Gunga Monee 16 W R , 291, Soudaminey v Jogesh (1877)
2 Cal., 262. Even before partition the widow has an alienable interest
which ma> be enforced by partition by her assignee, Janoki Nath
V. Mothura Nath (1883) 9 Cal, 580 FB As to the right of widows
among the Jams to demand a partition of their husband’s share, see
Sheo Singh V. Mt Dahho (1874) 6 N. W P , 382, 406, affd (1878)
5 1 A, 87; 1 All, 688

(Ic) Mohodeay v. Haruk Narain (1883) 9 Cal., 244, 250.

PARA. 435. J

SHARES FOR WOMEN.

547

widow may take in different capacities, as heir of one branch
of the family and as mother or grandmother in another
branch (/) .

Under the Dayabhaga law, in a partition between sons
by different wives, the respective mothers are entitled to
share equally only with their own sons. Consequently the
property must be first divided into as many shares as there
are sons and each widow then shares equally with each of
her sons the portion allotted to all her sons (m). “When
the Hindu law provides that a share shall be allotted to a
woman on partition, she takes it in lieu of or by way of
provision for the maintenance for which the partitioned
estate is already bound, and thus it is material to see in
what way she takes a share. According to Jaganndtha, it
IS a settled rule that a widow shall receive from sons who
were born of her an equal share with them and she cannot
receive a shafe from the children of another wife” (n). A
widow, who has only one son is not entitled to a separate
share (o). But if he dies, and his sons come to a division,
then she would be entitled to share with them as grand-
mother. Similarly, if a man dies leaving three widows, each
of whom has one son, and these three sons come to a division,
none of the mothers would have a right to a share; because
each of them retains her claim intact upon her own son.
But if the sons of one son divide among themselves,
their grandmother will be entitled to a share. If the grand
sons of all three widows divide, all the grandmothers will
be entitled (p) • In each case the share of the widow will
be equal to the share of the persons who effect the partition.
If it takes place between her sons, she will take the share

Dayabhaga:

mothers’

shares.

Grandmother.

(/) Jugmohun v. Sarodamoyee (1878) 3 Cal, 149, Poorendranath
V. Hemangini (1909) 36 Cal., 75

(m) Knsto Babhiny v. Ashutosh (1886) 13 Cal., 39 following
Callychiirn v. Jonava 1 Iiid. Jur. N.S., 284 and dissenting from font
V. Taraprosonno (1879) 4 Cal., 756.

(re) Hemangini v. Kedarnath (1889) 16 I.A., 115, 123, 16 Cal., 758.
Whether the share is taken by her for her maintenance or for her
inheritance has been the subject of conflicting decisions. Sorolah
Dassee v. Bhoobun Mohun (1899) 15 Cal, 292; Sashi Bhushan v
Han Narain (1921) 48 Cal, 1059; Hira Lai v. Sankar Lai (1938)
42 C.W.N., 695, Bhagwantrao v Punjaram A.I.R. 1938 Nag, 1

(o) 16 I. A., 115; 16 Cal., 758 supra; Sorolah v. Bhoobun (1888)
15 Cal., 292, 306.

(p) F. MacN., 39, 41 54; Sibbosoondery v. Bussomutty (1881) 7
Cal., 191; Badro Roy v. Bhugwat (1882) 8 Cal., 649; Purna Chandra
V. Sarojini (1904) 31 Cal., 1065.

548

Great grand-
mother.

i^ARTlTlON [chap. Xl,

of a son, j 1 between hei giandsons, she will take the share
of a grandson (q) ,

Where a partition takes place among gieat-grandsons
only, It is said that the great-grandmother has no right to
a share (r) But if a son be one of the paititioning paities
with great-grandsons by another son, she would take a son's
share. And if a grandson and great-grandson divide, she
would take a grandson’s share (s).

“Partition, to entitle a mother to the share, must be made
of ancestral property, oi of property acquired by ancestral
wealth. Therefore, if the properly had been acquired by A,

(q) D.KS, vii, §§2, 4, Raghunandana, ii, 19 If she has already
been provided for to the extent to which she would be entitled on
partition, she takes no more, if to a less extent, she takes as much
more as will make up her share Jodoonath v Brojonath (1874) 12
B.L R , 385. If d mother has three sons, one of whom dies leaving
grandsons, and a partition takes place between the two surviving sons
and the grandsons, the mother will be entitled to the same share as
if the division had been eftected between three sons, that is to say,
the property will be divided into four shares, of which the mother will
take one, each surviving son will take another, and the grandsons will
take the fourth {Prawanki6Son v Muttoosoonder), Fulton, 389, Cooroo-
persaud v. Seebchunder F MacN ,29, 52) Where the partition takes
place between grandsons by different fathers, the matter becomes more

A

J

BCD

I I I

2 grandson‘s 3 grandsons 4 grandsons.

complicated For instance, suppose A to have died leaving a widow
and three sons, and these sons to die, leaving respectively two, three,
and four grandsons, and that these grandsons come to a division If
then grandmother was dead, the property would be divided into three
portions, per stirpes, which would again be divided into two, three, and
lour parts, per capita (^421) But if the grandmother is alive, she
will be entitled to the same share as a giandson But it is evident
that the grandsons by B take a larger share than those by C, and these
again a larger share than those by D. The mode of division, therefore,
is stated to be, that the whole property divided into ten shares, of which
the grandmother will take one, the two sons of B will take three, the
three sons of C will take three, and the four sons of D will take three
If the widows of B, C and D were also living, they would be entitled
to shares also. Each widow would take the same share as her Min But
in order to arrive at this shaie, a fresh division would have to he made.
The three-tenths taken by the sons of B would be divided into three
parts, of which his widow would take one. Similarly, the three-tenths
taken by the sons of C would be divided into four parts, and the three-
tenths taken by the sons of D would he divided into five parts, of which
one would go to the respective widows of C and D, the remainder
being divisible among their sons.

(r) Dig, II, 251, F MatN , 28, 51, b (. baikai’s Vyavastha
Darpana, Vol. II, p. 745 note

( 5 ) F. MdcN , 52; Puma Chandra v Sarojini (1904) 31 Cal., 1065

PARAS. 435436.] UNMARRIED DAUGHTERS.

549

the father of B and C, and B and C come to a division of
it, their mother (the widow of A) shall, but their grand-
mother shall not, take a share of it. And if the estate shall
have been acquired by B and C themselves, neither their
mother nor grandmother will be entitled to a share upon
partition” (/).

§ 436. Where a partition takes place during the life of
the father, the daughter has no right to any special apportion-
ment. She continues under his protection till her marriage;
he is bound to maintain her and to pay her marriage expenses,
and the expenditure he is to incur is wholly in his discre-
tion iu) But where the division takes place after the death
of the father, Manu directs: “To the maiden sisters, the
brothers shall severally give portions out of their shares,
each out of his share, one-fourth part” (v), Yajnavalkya
requires that brothers should have their unmarried sisteis
married at their expense giving them a quarter of their own
share (w) . The provision of a quarter share was confined to
unmarried sisters only, married sisters not being entitled to
any share along with their brothers. Obviously, the provi-
sion was meant for the expenses of marriage as well as for
a gift or dowry in connection with marriage. This is evident
from the Arthasastra of Kautilya and Narada (x) , The
latter says: “They shall maintain her upto the time of
marriage; afterwards let her husband keep her” (y).

On the question whether unmarried sisters were sharers
along with their brothers or were only entitled to an amount
sufficient for iheir marriage, theie has been an arute differ-
ence of opinion from early times amongst the commentators.
Asahaya, Medhatithi, Vijnanesvata, Nilakantha and Mitra-
misra combat the view that the provision is only for an
amount sufficient for marriage expenses, the Mitakshara going
farthest and declaring that “aftei the decease of the father

(t) F MacN , 51, 54, Isrec Pershad v Nasih Koer (1884) 10 Cal,
1017

(u) Mit, I, 7, 14

(v) Manu, IX, 118

(w) Yajn., TI. 124, Vishnu, XVIII, 34-35; Bnh , XXV, 64;
Kdtyayana cited in the Smritichandrika, IV, 26, “Unmarried daughters
shall be paid adequate dowry ( jtradamkam ) payable to them on the
occasion of their marriageb'% Arthasastra, Shamasastn, 198.

(x) Shamasastn, 198, Narada, XIII, 27.

(r) Narada, XIII, 27.

Rights of
daughters.

Rights of
unmarried
sisters.

550

PARTITION.

[chap XI,

Strangers.

Disqualified

persons.

an unman ied daughter participates in the inheritance” ( 2 ).
Bharuchi, Apararka, the Smntichandrika, Jimutavahana and
his followers, the Madhaviya, the Sarasvati Vilasa, the
Vivada Ratnakara and the Vivadachmtamani, all take the view
that the mention of a definite fourth only meant that an
amount must be allotted to each daughter as would be
sufficient for hei marriage {a) But the extreme position in
the Mitakshara that an unmarried sister was along with her
1)1 other entitled to a share in the inheritance had probably
no foundation in usage noi has modern usage been in
accordance with it Daughteis iheiefore take only as heirs
the separate estate of a Hindu Then rights as coheirs and
the effect of partition between them fall under the law
of inheritance

? 137 The purchaser of the undivided interest of a
coparcenei cannot compel a partition so as to cause anv
01 all of the members of a familv to assume^ the status of
divided membei'^ with all Us legal consequences \s already
stated, the vendee’s suit to enfoice the alienation bv partition
IS not a suit foi partition in the technical sense m which
paitition 01 viblia^a is used in Hindu law and does not bv
itself break up the joint famil>. The modes in which the
equity of the purchaser foi value is worked out have already
been discussed ( /) ) .

438 Persons who labour under anv defect which dis-
cfualifics them fioni inheiiting are equally disentitled to a share
on partition (c) \'aiious giounds of disqualification were
recognised by Hindu law All these grounds with the excep-
tion of congenital lunacy 01 idiocv have ceased to exist as

iz) Medhatithi Bhasya , Jha. \ ol , V, 98-101, Medhatilhi thinks
that the gift or dowry in connection with a sister's marriage may be
upto d fourth part and quotes a smrili text “What remains of the
ancestral property, after the father’s debts have been paid off, ®hall be
divided, other necessary payments also being made out of it, such
for instaiue as the gift to the unmarried girls’ Mil I, vii, S 14 Mr
(]olehrooke's translation of placiliim, I, vii, 13 is incorrect It ought
to read “ffence the interpretation of Asahaya, Medhatithi, etc”, see
ante § 17 and note ip) to it, V May IV, iv, 39, 40, Viramit II, ], 21,
folly, L & ( 1812 See the eom ise note of Mandlik, p 217, notes

4 and 5

ia) Smriticliandrika, III 18-19, Da>a Bh III, ii, 39, D K S. VII,
9-10, Raghnnandana Ilf, 19 20, Madhaviya, §25 The Sarasvati Vilasa
sets out both views, but states the modern doctrine, which is that of
Apararka, last, though without offering any opinion of its own, § 119-133;
Vivada Ratnakara. V, 21 26, Vivada Chintamani, 240
ih) See ante §§386. 388

(c) Ramsahye v. Lalla Laljee (1882) 8 Cal., 149; Ram Soonder v
Ram Sahye (1882) 8 Cal, 919,

PARAS. 438-440.] (.ONVERSION EFFECTS SEVERANCE.

551

part of the Mitakshara law by virtue of the Hindu
Inheritance (Removal of Disabilities) Act, 1928. All the
disqualifications howevei continue to be in force in the
Dayabhaga School. The subject will be fully discussed in a
subsequent chapter (d).

439. The disqualification arising from renunciation of
leligion and deprivation of caste has been relieved against bv
the Caste Disabilities Removal Act, XXI of 1850. The onU
effect of conversion or exclusion from caste is that it operates
as a separation in interest of the conveit or the outcaste from
the family (e) ; as a result of such severance, he and the
other membeis of the family have no mutual rights of
survivorship (/). The Act applies only to the convert or the
outcaste but does not relieve his descendants from the dis-
qualification which the Hindu law attaches to the offspring
of an outcaste fg).

f

^ WO. Except in the case of degiadation, the disqualifica-
tions imposed by Hindu law are puiely personal and do not
attach to the legitimate descendants of the disqualified
person (/i). Its effect is to let in the next heir, precisely as
if the incapacitated peisoii were then dead. But that heir
must claim upon his own merits, and does not step into his
father’s place For instance, suppose the dividing parties
were C and F, and that E weie incapacitated but alive, his

A

D dead

I

E

I

F

I

(;

son F would be entitled to claim half of the pioperty. But
if F was the incapacitated person, and D and E were dead.

B dead

I

C

id) Set* pobt chap XV

(e) Abraham v Abraham (1863) 9 M.I A , 195, Khunnilal v.
Govindakrishna (19]lj 38 I A., 87, 33 AIL, 356; Kulada Prasad v
Hanpada (1913) 40 Cal., 407, Rani Pergash v. Mt. Dahan Bibi (1924)
3 Pat, 152, Pathumma v Raman Narnbi (1921) 44 Mad., 891, 897 F B.

(/) Kunhichekkan v Lydia (1912) 11 M.L.T., 232; Subbayya v.
Rangayya A.I.R , 1927, Mad, 883, (1913) 40 Cal., 407, supra §43.

(g) Mit , II, X, 2, Mitar Sen v. Maqbul Hasan (1930) 57 I.A.,
313, A I.R. 1930, PC, 251, approving Vaithilinga v Ayyathorai (1917)
40 Mad, 1118 and overruling Bhagwant v. Kallu (1889) 11 All., 100;
Chedambaram v. Ma Nyein Me (1928) 6 Rang., 243.

{h) Mit., II, X, 9 11, Daya Bh., V, 17-19.

Conversion

effects

severance.

Other dis-
qualifications
personal.

552

PARTITION.

[chap. XT,

Removal of
disability.

Right in
abeyance.

G would have no claim, being beyond the limits of the
coparcenary (i) On the other hand, such disqualification
only operates if it arose before the division of the property.
One already separated from his co-heirs is not deprived of
his allotment ( j ) . And if the defect be removed at a period
subsequent to partition, the right to share arises in the same
manner as, or upon the analogv of, the right of a son born
after partition (i).

Where the disqualification is not congenital, he would
under the Mitakshara law acquire a right in the joint familv
property by birth In such a case, the effect of a subsequent
disqualification has been considered In Muthuswami
Gurukkal v. MeenammaL it was held that the right of a
member of a Hindu family to shaie in ancestral pioperty
comes into existence at birth and is not lost but is only in
abeyance by reason of a disqualification It subsists all
thiough, although it is incapable of enforcenient at the lime
of partition, if the disqualification then exists Hence if on
the death of all the other members, the disqualified member
becomes the sole surviving member of the family, he takes
the whole properly by survivorship (Z). The same rule
would seem to apply even wheie a cogenital disqualification
is subsequently removed.

Another consequence of this dormant coparcenaiy interest
of the person suffering fiom a supervening disqualification is
illustrated in Verihateswara Pattar v Mankayammal wheie
It was held that the father could validly separate himself in
interest fiom his onl> son who after his biith became lunatic
so as to enable the falhei to dispose of his inteiest by will in
favour of his daughter <m) As a lesult of the Act of 1928
which makes congenital lunacy and idiocy the only grounds
of disqualification, the distinction will not b(‘ inatenal m
futuie and a person who becomes a lunatic aftei his birth
and before paililion will iheiefoie be entitled to his share

(z) Uodhnarain \ Omrao (1870) 13 MIA, 319, />cr Pvadxh CJ,
Kali das v Knshan 2 BLR (FB ), 115, ante ^267

(;) Milakshdia, ii 10 §6, §601

(A.) Mitak&hara, ii, 10, §7» V May, iv, 11, §2

(/) (1920) 43 Mad, 464; Mt Dilraj Kuan v. Rikhesiva Ran
(1934) 13 Pat, 712; Venkateswara Pattar v Mankayammal AIR,
1935, Mad., 775; 69 M.LJ, 410; Vithaldas v. Vadilal A.I R., 1936.
Bom., 191; Moolchand v. Chahta Devi [19371 All, 825, F.B

(m) A.T.R., 1935, Mad., 775, supra.

PARAS. 440442.] FRAUD OF COPARCENER,

553

on partition (n). The Act does not remove any disability in
respect of any religious office or service or management of a
leligions or charitable trust.

The son of a disqualified member of an undivided family
is entitled to a share in the lifetime of his father notwith-
standing that he was born after the death of his grandfather.
The reason is that the estate vests on the death of the
grandfather in the other coparceners subject to the contin-
gency of its being divested on the recovery of the disqualified
person or on the birth of a qualified son to him (o) , The
Bombay High Court has held otherwise (p).

§ 441. There can be no doubt that the rule now estab-
lished that a murderer is disqualified from inheriting as heir
must apply equally when he claims a share on partition of
coparcenary property. Where the murderer claims to succeed
by survivorship, it would seem to follow that he will be
equally excluded from any increased share coming to him
as the result of his crime (q),

§ 442. A text of Manu treats fraud by one of the
coparceners as working a forfeiture of his share (/ ) . Kulluka
and Jagannatha explain this as referring to the eldest brother’s
special share ( 5 ). Yajiiavalkya and Katyayana merely say
that property wrongfully kept back by one of the co-sharers
shall be divided equally among all the sharers when it is

(n) In Ram Sahye v Lalla Lalljee (1B82) 8 Cal, 149 (a
Mitakshara ra^e) long, before Act XXI of 1928, jt was held

that supervening lunacy will <liseniitle a person from inheriting:
Ram Soonder v Ram Sahye (1882) 8 Cal, 949, Abilakh Bhagat v
Bhehhi Mnhto (1895) 22 (’a1 , 864, s<’e these cases explained in

AIR., 1935, Mad, 775, 69 MLJ, 410, 419, siipFa, the decision in
Tirbeni v Muhammad (1906) 28 All, 247 which look a contrary
view is not good law and has been overruled by the Full Bench in
1 1937 1 All 825 (FB ), 831, 832

io) Krishna v Sami (1886) 9 Mad . 64 F.B

(p) Bapuji V Baudiirang (1882) 6 Bom, 616, Pawadewa v
Venkatesh (1908) 32 Bom, 455 The case in 6 Bom, 616 follows
Kahdoss v Knshan (1869) 2 Beng LR, 103, 111 FB admittedlv

d Dayabhaga case A son adopted after the dealli of the
ancestor would have divested in that case The case iii 2

Beng L.R , 103 was a case of inheritance strictly according to
the law in Bengal, and not a case of a birth or adoption before the
death of the surviving coparcener. Both ihe Bombay cases therefore
proceed upon a misconception and are opposed to the positive iiile
of the Mitakshara, II, x, 9-10 See post § 605

ig) Kenchawa v Girimallappo (1924) 51 I A, 368, 48 Bom, 569.

(r) Manu, IX, 213.

In) Dig., 11, p. 222.

After-born
son of
disqualified
coparcener.

Murderer.

Effect of
fraud of
coparcener.

554

PARTITION

Tchap. \I.

Agreement
not to
partition.

discoveied (/). The Mitakshara treats the coparcener’s fraud
as a criminal act but only contemplates a fresh distribution
including the property concealed (u).

The Bengal writers are of opinion that the act of one
coparcener, in withholding part of the property which is
common to all, is not technically theft, and is not to be
punished by any forfeiture (v)

^ 4b‘) An dgreeinenl between the members of a tlindu
family that foi a certain time oi until a certain event or for
their lives the joint family propeities are not to be partitioned
will bind the actual parties to it(M;) The Bombay High
Court has held that an agreement between the coparceneis
never to divide is invalid as tending to create a perpetuity (.t) .
Unless the agreement also contained a condition against
alienation, it would not pi event any of the parties to it from
selling his share, and would be no bar to a suit by the vendee
to compel a paitition (y). Noi could such an agreement
cvei bind the descendants of the parties to it (z). A
covenant to postpone paitition during the lifetime of a
inembei of the famil) and then to divide the pioperty in
certain shares does not effect an immediate severance o(
status, but postpones it lo a future time, the members re-
main in the meantime unduided (o).

{t) Yajn, II, 126, Dig, JI, p. 292

ill) Mil, I, IV, Smniirhdndiika, XIV, 4 6, Madhaviya, §54, V
May , IV, VI, d, Viramit chapter VI

(!) Dava Bh, XIII, 2, 8, 15, DKS VllI, Dayatativa, I, 24-26

(w) Anand v Pranhisto (1869) 6 BLR (OC J ), 14, 4nath \
Mackintosh (1871) 8 BLR, 60, Rajender v Shoni (hand (1881) 6
(.dl., 106, Sn Mohan % MacGregor (1901) 28 Cal, 769, 786;

Kribhnendra v Debendra (1908) 12 CWN, 793, Jyotish Chandra v
Rathika Chandra (1933) 60 ( al , 1078 Rup Singh v Bhabhuti (1920)
12 Ml, 30, Aniniiigha v Ranganathan (1934) 57 Mad, 405, see Jafn
Regain v Syed Ah (1901) 28 I A, 111, 118, 23 All, 283

(r) Ratnahnga v I iriipakshi (1883) 7 Bom,, 538, (bandar Shekar
V Kundan JmI (1908) 31 Ml, 3 (not binding even on the parties)

(y) I5>ee cdbC'^ cited m note iw), supra

iz) Venkatranianna \ Rianuuanna (1869) 4 Mad 11 ( 345, 348,

349

{a) Purnananthachi \ (ropalaswann Odayar (1936) 63 I A., 436
affirming (1931) 54 Mad, 269 A provision in a partition deed that
in the event of the death of any one of the members without male
itesue, his ^hare of the joint family properties after deducting any
alienations made by him should be divided among the surviving
brothers is valid Ram Nirunjun v Prayag Singh (1882) 8 Cal., 138*
Kanti V AhiNabi (1911) 33 All 414, Muthuraman v Ponnusamy
(1915) 29 214.

PARAS. 444-44<5.]

INSTRUMENT OF PARTITION.

555

§ 444. Any direction in a will prohibiting a partition,
or indefinitely postponing the period for partition, is invalid,
as it forbids the exercise of a right which is essential to the
full enjoyment of family property by Hindu law (b),

§ 445. Tiiirdi^y, what constitutes a partition: — A
partition may be effected without any instrument in writ-
ing (c). An instrument of partition in respect of immovable
properly of the value of rupees 100 and upwards requires
registration under sec. 17 (1) of the Indian Registiation Act.
1908 (d). But an agreement which by itself does not create
any right oi interest in immovable pioperty but only a right
to obtain an instrument on partition does not require registra-
tion (e).

ib) iJmrao Singh \ Baldeo Singh (1933) 14 Lah.. 353, Mokoondo
Ganesh (1876) 1 Cal., 104, Jeebun v Ramanath (1875) 23 W.R ,
297. In Raikishori v Debendranath (1888) 15 I A., 37, 15 Cal, 409.
the revinclions 'which were very indefinite were held to be invalid
as creating a perpetuity. Act IV of 1882, § 10, 11 (Transfer of
Property Act) Compare Muhammad Raza v. Abbas Bandi Bibi (1932)
59 I.A , 236, 7 Luck., 257, where a partial rehtnclion on alienation
was held to be valid distinguishing Raghunath Prasad v. Depy Commr ,
Partabgarh (56 T A., 372) as a case of absolute restriction.

(c) Sec 9, T P y\ct Rewun Persad v Radha Beeby
(1846 ) 4 M.I A., 137, 168; Kishanlal Lachmithand A.l R., 1937, All.,
156; Satyakumar v Satyakripal (1900) 10 C.LJ, 503, Katama Natchiar
V. Rajah oj Shivaganga (1863) 9 M.I A., 539, 543, Alamelu v Balu
(1920) 43 Mad, 849.

id) “The agreement was, unfortunately, not registered, and is,
therefore, under the terms of the Registration Act, not available as
evidence of the transaction’' Jogireddi v. Chinnabbireddi (1929) 56
I.A., 6, 9, 52 Mad, 83, 86, Ram Gopal v Tulshi Ram (1929) 51 All,
79 F.B , Nilkanth v. Hanmant (1920) 44 Bom, 881, Rrmlal v. Mt
Sitabai (1933) 14 Lab, 635. Lakshmamma v. Kamesvara (1890) 11
Mad, 281, Shankar v Vishnu (1875) I Bom, 67

(e) Rajangam Iyer v Rajangam Iyer (1923) 50 I.A., 134; 46 Mad,
373, Chhotala! v Bai Mahakore (1917) 41 Bom, 466 An unregistered
instrument of partition is admissible to prove division in status,
Subramania v Savitn (1909) 19 MLJ, 228, Varadapillai v
Jeevarathnamma! (1920) 16 T A , 285, 43 Mad, 244, PC, (1923) 50
I A, 134, 46 Mad, 373, supra, Gnanamuthu v. Veiluhanda (1923) 19
M.L W., 494, Ramuchetty v Panchamma (1925) 92 1C., 1028 following
16 Mad., 373, PC, supra, Mahahtkshmamma v. Suryanarayana (1928)
51 Mad, 977, Subbarao v Mahalakshmamma (1931) 54 Mad, 27.
44; Samuvier v. Rarnasubbier (1932) 55 Mad, 72; but see cases
(ontra, Pothi v Nagannn (1916) 30 MLJ., 62 F.B.; Ayyakutti v
Periasami (1916) 30 MLJ., 404 F B. Meie lists of properties allotted
at a partition do not constitute an instrument of partition requiring
registration Kshetra Mohun Pal v Tufani (1933) 37 C.WN, 112
Where an unregistered partition affects both immovable and movable
properties and is indivisible, the instrument is inadmissible even for the
purpose of proving the terms not affecting immovable property • Samuvier
v Rarnasubbier (1932) 55 Mad., 72; Lakshmamma v, Kamesvara (1890)
13 Mad, 281, Perumal Ammal v. Perumal Naicker (1920) 44 Mad.,
196 By the amendment of section 49 of the Indian Registration Act
bv the Transfer of Property (Amendment) Supplementary Act, 1929,

Will

prohibiting or

postponing

partition.

Instrument of
partition.

536

PARTITION.

[chap. XI,

Numerous circumstances are set out by the writers as
being more or less conclusive of a partition having taken
place, such as separate food, dwelling, or worship; separate
enjoyment of the properly, separate income and expenditure;
business transactions with each other, and the like (/). The
rules laid down by the writers as to evidence of partition
are clear and practical and are characterised by shrewd
insight. Dr. Jolly remarks of them “If these sensible rules
had been enforced bv the courts they might have saved much
litigation” (g)

Evidence of
partition.

But all these ciicumstances are merely evidence, and not
conclusive evidence of the fact of partition Paitition
IS a new status, and when it is brought about by consensus
of the members of a copaicenarv they must intend that their
condition as coparceners shall cease. It is not sufficient that
they should alter the mode of holding their piopeity They
must alter, and intend to alter, their title to it They must
cease to be joint owners, and become sepaiate owners.
On the one hand, the mere cesser of commensalitv and

an unregistered deed is admissible as evidence of part performance
under s. 53A of the Transfer of Property Act Tn Madrci<s unregistered
deeds executed before 1881* are admissible by Madras Act II of 1884
In Ki^han Lai v Lachmuhond AIR, 1937, All, 4'>6, it was held
that there can be no partition of immovable property without change
of possession, in the absence of a registered deed

(/) Nar, XIII, 36-43, Mit , II, 12, Daya Bh , XIV, Smriti-
chandrika, Ch XVI, 2 W MacN , 170 See Hurrischunder v.
Mohhoda, 17 W.R , 564, Miiran Vithoji v Mukund Shivaji (1891)
15 Bom, 201, Ram Lull v Debt Dat (1888) 10 All, 490 Regarding
separate business transactions, Narada savs “Tin* arts of giving
evidence, of becouimg a surety, of giving, and of taking, mav be
nuituallv performed liy divided brothers, but not by unsepaiated ones,
if brothers or others should transact such as these publiclv with then
coheirs, they may be presumed to be separate in affairs, even though
no written iccord of the partition be in existence Those brothers
who for ten years tontinue to live separate in point of religious duties
and business transactions, should be regarded as separate, that is a
settled rule” Xlll 39-41 See also Brih , XXV, 93 As regaids
worship, Narada savs, “Among iinseparaled brothers, the performance
of religious duties is single. When they have come to a partition,

they have to perform their religious duties each for himself” (XIII,

37) The result of separation is thus stated by him “Giving,

receiving, cattle, food, houses, fields, and servants must be regarded
as separate among divided brothers, and so must cooking, religious
duties, income and expenditure be kept separate for each of them”,
(XIII, 38) “For those living under one kitchen there shall be only
one offering to Pitris, Deities and Brahmins For those that are

separated it shall be done m each house separately” Nar Dig., II, p 499.
For Asvalayana and other texts, see Jha, II.L,S., II, 621 sqq

(g) Jolly, T.LL, 141-2.

t>ARA. 445. J

fiViDENCK OF ^ARTlTlON.

557

joint worship (g^), the existence of separate transactions (A),
the division of income (£), or the holding of land in separate
portions (y) , or a mere definition of shares in revenue and
village papers (A;), do not establish partition, unless such
steps were taken with a view to carry out a partition (Z).
The question however is one of fact to be decided in the
light of legal principles, as to the cumulative effect of ail
the rii cumstances [m) . On the other hand where a division
in status has in fact taken place between the members of a
family, the fact that one member continues to live jointly
with the others and is described in suits and proceedings as

(gi) Rewan Pershad v. Radha Beeby (1846) 4 137, 168,

Anundee v. Khedoo (1872) 14 412; Chowdhury Ganesh v. Mt.

Jewach (1904) 31 I A., 10, 3] Cal, 262, Suraj Narain v Iqbal Narain
(1913) 40 I. A., 40; 35 All., 80, Alluri Venkatapathi v. Dantulun
V enkatanarasimha (1936) 63 1 A., 397, 406, L1937J Mad, 1. “If there
has been no such division of right oi severance in interest, they continue
to be joint in esta'te and mere cesser of commensality would not make
them separate in estate, as a member may become separate in food or
lesidence for his convenience”. Konammal v. Annadana (1927) 55
I.A., 114; 51 Mad., 189 (as to an impartible estate) ; Mukund v.
Balknshna (1928) 54 I.A., 413; 52 Bom., 8; Chhabila v. Jadavbai
(1870) 3 Bom. H.C. (O.C.J ), 87 (food and worship), Purnima Debya
V. Nand Lai (1932) 11 Pat, 50

(/i) (1872) 14 M.I.A., 412, supra* Kristnappa v. Ramaswami

(1875) 8 M.H.C.R., 25; Chokhey Lai v. Commr. of Income-tax A.I.R.,
1932, AIL, 471, Lai Chand v. Punjab National Bank, Ltd, A.I.R, 1934,
Lah., 555.

(i) Sonatun Byrack v. Juggutsoondaree (1859) 8 M.I A , 66, 86
(mere division of income for the convenience of the different
members) .

(y) Runjit V. Koer (1873) 1 LA, 9, Ambika v. Sukhmani (1876)
1 All., 437, Viravara v. Suryanarayana (1897) 24 I A., 118. 20 Mad.,
256; Gajendar \. Sardar (1896) 18 All, 176; Murari v. Mukund
(1891) 15 Bom., 201, Abdul Wahabkhan v Tilakdhari Lai (1927)
32 C W.N., 170 P.C., 53 M L.J , 325 (where the circumstance of
exclusive collection for forty years was held to be evidence of a
formal partition). Saddha Singh v. Mangal Singh A.I.R., 1933, Oudh
166.

(A) Nageshar Baksh Singh v. Ganesha (1920) 47 I.A., 57; 42
All., 368, Mt, Bhagwam hunwar v. Mohansingh (1925) 29 C.W.N.,
1037 P.C., Rampershad v Lakshpati (1903) 30 I A., 1; 30 Cal, 231,
Parbati v. Naunihal (1909) 36 I.A., 71; 31 AIL, 412 (division proved).

(/) Ram Kissen v. Sheonundan (1875) 23 W.R., 412 P.C. “The
mere fact that the shares of the coparceners have been ascertained
does not by itself necessarily lead to an inference that the family had
separated. There may be reasons other than a contemplated imme-
diate separation for ascertaining what the shares of the coparceners
on a separation would be”, Palani v. Muthuvenkatachala (1925) 52
I.A., 83, 86; 48 Mad, 254, 257, Beti v. Sikhdar (1928) 50 AIL, 180;
(1936) 63 lA, 397, 406, [19371 Mad., 1, supra, which discounted
admissions of division made foi a pm pose or in ignorance of
the true position; Kamtaprasad v. Dingat Dat AJ.R., 1935, Pat., 368,
Karan Singh v. Budh Sen A.I.R. 1938 All, 342 (mere separate
residence).

(m) Parbati v. Naunihal (1909) 36 LA., 71; 31 AIL, 412.

558

Father^
power to effect
a partition

Partition by
agreement

FATHER*S POWER 10 PARTITION [ CHAP. XI

being joint and even acts as karta is not necessarily incon-
sistent with their being divided members (n).

H6. A Hindu fdthei under the Mitakshara law can,
it has been held, effect a pailition between himself and his
sons without then consent and this is rested on the
Vlitakshaia 1, ii, 2 This text has been held to apply not only
to property acquired by the father himself but also to ances-
tral pioperty The father has power to effect a division not
only between himself and his sons but also between the
sons inter se <o) So also it would seem that he has the
power to make a division when the sons are dead and hia
grandsons alone living [pj The power extends not only to
cffe( ting a division by metes and bounds, but also to a
division of status (g) In all these cases, the father’s power
must be exercised bona fide and in accordance with law: the
division must not be unfair and the allotments must be
equal (r)

H7 It IS now well established law that the coparceners
in a joint family can by agieement amongst themselves
sepaiate and cease to be a joint family, and on separation, are
entitled to partition the joint family property amongst
themselves (s). In Hindu law, partition does not mean
simply division of propeity into specific shares It covers,
as pointed out by Lord Westbury in Appovier v. Ramasub-
bier(t), both a division of right and a division of

(n) Balknshna Ramknshna (1931) 58 1 A , 220, 53 All, 300,
Ihhu Ramabray v Baboee Radhika ( 1935) 41 C W.N , 385 P.C

(oj AUun V enkatapathi v. Dantuluri V enkatanarasimha (1936)
63 LA, 397, 401, [1937J Mad., 1, 6, Kandasanu v. Doraisami
(1880) 2 Mad, 317, 321, Murugayya v Palaniyandi (1916) 31
147, Natesa v Siibramania (1918) 23 M L.T,, 307, V enkateswara
Pattar v Mankayammal (1933) 69 M.LJ , 410; Bapu v. Shanker

A.I.R,, 1926, Bom., 160, Ganpat v. Gopalrao (1899) 23 Bom., 636,

642, Nirman v Fateh Bahadur (1930) 52 All, 178, Shiv Dyal v
Ram Jiuaya (1931) 12 Lali , 574, Laxminarain v. Trimhak AIR.,
1934, Nag., 278

(p) Aiyavier \ Subramania Iyer (1917) 32 M.LJ, 439, see also
Lakshmibai v. Ganpat (1867) 4 Bom. HC. (O.C.J), 150 on appeal
(1868) 5 Bom H.C (O.C.J.), 128.

iq) (1936) 69 M.L.J., 410, 423, supra.

ir) (1936) 63 I A, 397, 401, supra, (1880) 2 Mad., 317, 321,

supra, (1917) 32 MLJ., 439, 441, supra, (1931) 12 Lah., 574,

mpra; (1930 ) 52 All, 178, 190, supra. See also Ramkishore v.

Jainarayan (1913) 40 LA., 213, 40 Cal., 966. A father cannot effect
a partition by will except with the consent of his sons, Brijraj v.
Sheodan (1913) 40 LA, 161, 167, 35 AIL, 337, 346; Harkesh Singh
V. Hardevi (1927) 49 AIL, 763.

( 5 ) Palaniammal v. Muthuvenkatachela (1925) 52 I.A., 83, 86, 48
Mad., 254, 257.

it) (1866) 11 75.

PARAS. 447-148.]

PARTITION BV AGREEMENT.

559

property («). When the members of an undivided family
agree among themselves either with respect to a particular
property or with reference to the entire joint estate that it
shall thenceforth be the subject of ownership, in certain
defined shares, then the character of the undivided property
and joint enjoyment is taken away from the subject mattei
so agreed to be dealt with; and in the estate, each membei
has thenceforth a definite and certain share which he may
claim the right to receive and to enjoy in severalty although
the property itself has not been actually severed and divided.
In otheis words, “If there be a conversion of the joint tenancy
of an undivided family into a tenancy in common of the mem-
bers of that undivided family, the undivided family becomes
a divided family with reference to the property that is the
subject of that agreement, and that is a separation in interest
and in right, although not immediately followed by a de facto
actual division of the subject-matter. This may, at any time,
be claimed b/ virtue of the separate right” (p).

A division of right or a severance of the joint status ina)
lesult, not only from an agreement between the parties but
from any act or transaction which has the effect of defining
their shares in the estate, though it may not partition the
estate. If a document clearly shows a division of right, its
legal construction and effect cannot be controlled or altered
by evidence of the subsequent conduct of the parties (ic).

^ 418. It is now settled that an agreement between all
the coparceners is not essential to the disruption of the joint
status though it is required for the actual division and dis-

(ii) Girjabai v. badasiv Dundhiraj (1916) 43 lA, 151; 43 Cal.,
1031

iv) (1866) 11 M.I.A., 75, 92, supra, (1916) 43 I.A., 159, 162,

supra; Amrit Rao v Mukundrao (1919) 15 Nag. L R., 165 P.(i.; 13

M.L.W, 112, 53 I.C., 666, Muhund v. Balknshna (1927) 54 I.A., 413,

419, 52 Born., 8, ALluri Venkatapathi v. Dantulun Venkatanarasimha-
rajii (1936) 63 1 A., 397, L1937] Mad, 1, Suraneni v. Suranent (1869)
13 M.T.A., 113, Doorga Pershad v Mt, Kundan (1874) 1 I A., 55; 13
B.L.R., 235, Balkishen v. Ram Narain (1903) 30 I. A., 139, 30 Cal.,
738; Anurago Kuer v. Dar^han Raut A.I.R. 1938 P.C., 65, Ashabai v
Haji Tyeb (1885) 9 Bom, 115; Tej Protap v Champakavallee (1886)
12 Cal., 96, Adi Deo v. Dukharan (1883) 5 AIL, 532, Anant v.

Damodhai (1889) 13 Bom., 25; Parbati v. Naunihal (1909) 36 I. A.,
71, 31 All., 412; Raghubir v Moti (1913) 35 All., 41 P.C.; Harkishan
V. Partap A.I.R. 1938 P.C.. 189.

(w) (1936) 63 I A, 397,406, [19371 Mad., 1, 6, supra, Balkisendas
V. Ramnarain Sahu (1903) 30 I.A., 139, 30 Cal., 738; Manickam
Chetty V. Kamalam (1937) 1 M.L.J., 95; Jai Narain v. Baijnath Rai
(1928) 50 All., 615, Shamlal v. Hiru Singh, A.I.R., 1936, Cal., 472;
Hira Singh v. Mt. Mangalam (1928) 9 Lah., 324; A.I.R. 1938 P.C., 189
supra.

Apportion-

ment

unnecessary.

Severance
by unilateral
declaration

560

seVERANCE BY LNlEAl'ERAl, DECLARATtON. [cHAP. Xt,

liibulion of the pioperty held jointly (a,). A definite and
unambiguous indication of intention by one membei to
separate himself fioni the family and to enjoy his share m
severalty will amount to a division in status (y). Sepaiation
in status, with all the legal consequences resulting therefrom,
IS quite distinct from de facto division into specific shares
of the property held until then jointly. The former is a
mattei of individual decision, and is effected by the unequi-
vocal expression of a desiie on the part of any one membei
to sevei himself from the joint family and to enjoy his
hitheito undefined and unspecified shaie separately from
the others, without being subject to the obligations which
arise from the joint status. The latter is the natural resultant
from his decision, the division and separation of his share,
which may be an ived at eithei b) jirivate agreement of the
paitics oi, on failuie of that, by intervention of the Court
Once the decision has been unequivocally expressed, and
clearly intimated to his co-shaicrs, his right lo obtain and
possess the shaie to which he admittedly is entitled, is
unimpeachable; neither the co-shaiers can question it, nor
can the Court examine his conscience to find out whether
his reasons for sepaiation aic well founded or sufficient The
Court has simply to give effect to his light to have his share
allocated separately from the others (z). This view finds
ample support in the Sanskrit books. In the Mitakshara,
Vijnanesvara defines the word ^'vibliaga^’ which is usually
rendered into English by the word “partition” as the adjust-
ment of diverse rights legarding the whole, by distiibuting
them in particulai poitions of the aggregate (a) . Mitra-
misia explains in the Viramitiodaya the meaning of the
passage; he shows that the definition of Vijnaneswaia does
not mean exclusively the division of property into specific
shares as alone giving right to property but includes the
ascertainment of the respective rights of individuals, who

(jt) Girja Bai v Sadashiv Dhundiraj (1916) 43 lA, 151, 159,
43 Cal., 1031, the prior decisions requiring an agreement or a decree
of court for a division m status are longer law The Privy Council
said “Some of the courts m India have supposed Loid Westhury's
expressions to imply that the severance in status can take place only
by agreement Their Lordships have no doubt that this is a mistaken
view” (43 I A, 151, 162, 43 Cal, 1031).

(y) (1916) 43 I A, 151, 158, supra

(z) (1916) 43 I A, 151, 160, 161, 43 Cal., 1031, supra, Suraj^
nuram v Iqbal Narain (1912) 40 lA, 40, 35 All, 80, Gundayya v
Shriniwus AIR, 1937, Bom , 51 , hut a mere oral direction by a
coparcener to his undivided brother to give his share to the widow
of the former does not amount to such severance; Shivappa v. Rudrava
(1933) 57 Bom., 1 sed qu,

(a) Mil., I, i, 4.

PARAS. 418- 1.50 J

PARTITION.

561

claim the heritage jointly. He hays(/>), “Foi pailition ib
made of that in whirh propiictary right has already arisen;
consequently paitition cannot pioperly be set forth as a
means of proprietary right. Indeed what is effected by
partition is only the adjustment of tbe pioprietaiy light into
specific shares” ic). The Vyavahaia Mayukha makes il
deal that sepaiation is a mattei oi individual volition (f/) .
Nilakantha says, “even when there is a total absence of
common property, a partition is effected by the mere declaia-
lion ‘1 am separate fioni thee’; foi, paitition is but a paili-
cular condition of the mind and this declaration is indicatuc
ol the same” The passage in the Viramitrodaya is conclusive
on the matter. “Heie again, ^ paitition at the desiie of the
sons’, I which expression includes giandsons and gieal-grand-
‘^ons) whether in the lifetime of the father oi after his cleatl’
inav take place hv the (houe of a single copaicenei, since
ihcre IS no distnutioii” (c)

J; no. The intention to separate may be cninced in
dilleienl way^ either by exjilu it declaialion or by conduct. 11
It IS an infer cm e derivable from < ondm t, it will be for the
f^ouiL lo decide whether it was une(|ui vocal and express. Thi*
intention of one meinbei lo sepaiate himself must ordinarily
be inliirialed lo the othei copaiceneis(/) .

150 'Fhe institution ol a suit for a partition by an
adult member is *in unequivocal inlimation of his intention to
•^epaiate and there is eonse<|U(Milly a seveianee of his joint
status from the dale when the suit is instituted (g). Wheic

ih) Virdiiul , ‘^dikai's lidii^, I ^ Stlliu ed , p. 288

(<) (1916J 43 lA, 151, 159, 43 Cal, 1031, supra.

((]) V May, IV, in, 2

(c) Viianiit , II, 1? 23 (Srtliu''' rd , 341), ihr Sardsvati VilaM
^ays “ll to ho iindor^lood hy this that there is a completion of
diMsioii h> inran*' of an ad t>f the will alone without any technical
form, jiiM as the ci rat ion of an appointed daiifilitcr is completed hy
a mere art of the will without any tcchnual form’* (para 28).

• I/) Joy Narain v (rnsh ('hander (1878) 5 I A, 228, 232, 4 ( al ,
434, (1916) 43 1 A , 151, 162, 16.5, 43 1031, supra, approviii^^ of the

dictum of Mitter, J , in Deo Htinsce Kocr v. Dwarkanath (1868) 10
W.R., 273; Balkrishna v Ramahrishna (1931) 58 LA., 220, 53 All,
300, Rangasayi v. Nagarathnamma (1934) 57 Mad., 95 FB.; Sura]
Narum v Iqbal Natain (1913) ^10 LA., 40, 35 All., 80; Kedar Nath v.
Ratan Singh (1910) 37 TA, 161, 32 All, 415

ig) Kawal Narain v Prabhu Lai (1915) 44 1 A., 159; 39 All
496, Ramalinga v Narayana (1922) 49 LA., 168, 45 Mad., 489,
Jagadaniba v. Narain Singh (1923) 50 LA, 1, 2 Pat., 319,

Palaniammal v. Muthuvenkatachala (1925) 52 I A, 83; 48

Mad., 254, (1931) 58 LA., 220, 53 AIL, 300, supra, Soundara

lajan v. Arunachala (1915) 39 Mad., 159 F.B,; (1934) 57

38

Ol by
tmidncl-

Or 1)N suit.

562

PAHTlTlON

[chap. \l,

Communi-
cation of
intention

a coparcener who institutes a suit for partition afterwards
withdraws it, there is no severanc'e of the joint status (/i).
A fortiori where a coparcener sends a notice to the other
members demanding a partition and afterwards withdraws
his demand with the consent of the other members, he cannot
be treated as having become divided in status (i) ,

^ 451. It is open to an adult coparcener to express his
intention to sepaiate from a minor coparcener by communicat-
ing his intention to the mother oi other natural guardian of
the minor. On principle it is difficult to see why the intention
should be communicated to every member of the family. It
would seem to be sufficient if the intention is clearly inti-
mated to the managing member, or wheie it is by the
managing member to some of the members of the family.
No doubt, the expression of intention must be published in
some way so as to be legally effective (;) It would seem
that all that is necessary is that the expression of intention
should be clear and unequivocal and the coparceners should
be cithei awaie oi in a position to be awaie of it (/f). In a
case wheie theie aie only two (opaiceners and one of them
is a minor, the othci being his natural guardian, the difficulty
of insisting upon anv iigid lule as to r ommiinication will
be felt (/). In such a case no foimal communication would
appeal to he necessaiv b\ the adult copai eerier desiring to
separate. In Narayana Rao \ Purusliottarna Rao, it was laid
down thal the rule is not that the seveiaiK'e in status takes place
only aftei the communication of the notice of intention has
been lecened by the othei copai cmieis, but a incie posting
of the notice was sufficient to validate a will executed by the
copai ceiiei desirous of scpaiating, the day aftci it was
posted {m),

Md(l , 95 F.B , bUpTOy Farsottam \ Jagnnnuth (1919) 11 All, 361,
Hiipan Rai v. Siibhkaran Rai (1919) 11 Ml, 207, 209, Radifipali v.
( handrfbitr A.l R 1924 (ludh, 252, Lala Haijnath \ Rani CnpaL
1 1938 1 1 (’al , 369 TIk ilttisjon in Joala F/abud v (liandvijot (1938)
17 Pat, 130 lliat a plaint claiming partition is a inmo |)km of (vidimc
overlooks Its formal chaiaitci as a demand winch is an act in the law.

(A) (1910) 37 I.A., 161, 32 All, 415, supra, (1925) 52 I A , 83,
48 Mad., 251, Ganapathy v. biibrnmonyani (1929) 52 Mad, 845, 851
(“withdrawal before trial” is interpreted as withdrawal before final
decree), (1934) 57 Mad, 95 (F.B.) ; 130, supra, Dattatraya v.
Frabhakar A.l R., 1937, Bom. 202, Rama Ayyar v Meenakshi A.l R ,
1931, Mad, 278, Thaiasimuthii v Thavasimuthu AIR, 1931, Mad,
824; Shagun Chand v. Data Ram (1927) 49 AIL, 664.

(i) Banke Behan v. Brij Bihari (1929) 51 All., 519, (1934) 57
Mad., 95 (F.B.). 130.

(;) Dnyaneshwar v Anant (1956) 60 Rom., 716

(A) Venkateswara Pattar v. Mankayammal (1933) 69 MLJ, 410.

(/) (1933) 69 M L.J., 410, supra

(m) (1938) I M.LJ., 45, AIR. 1938 Mad, 390

pAUa. 452.]

minor's suit por partition.

563

§ 452. On the question whether the institution of a suit
for partition by the next friend of a minor effects a severance
in interest so as to make the minor coparcener divided in
status fiom the other membeis, there is a conflict of decisions.
In Rangasayi v. Nagarathnamma, a Full Bench of the Madras
High Court has held that in all such cases, the severance is
effected from the date of suit, conditional on the Court being
able to find that the suit when filed was for the benefit of
the minor; and if a minor dies pending the suit, his legal
representati\e can bung himself on record and continue the
suit for partition subject to the decision of the Court on the
question whether the suit, when instituted, was for the
benefit of the minor (n). The same view has been taken in
Patna Following the earlier Madras decision in

Chelimi Chetty v. Subbamma (o) which has since been
overruled by the Full Bench (p), the Allahabad High Couit
liowever has held that the institution of a suit by the next
friend of a minor has not the same effect as the institution
of a similai suit by an adult member of the family and that

in) Rangasayi v. Nagarathnamma (1934) 57 Mad., 95 (F.B.) ;
“The ratio decidendi of the Full Bench is intelligible; the exercise
of the option by the guaidian dues effect a severance but the
severance so to speak remains in a state of suspended animation till
tlie Court ratifies the act , the Court takes upon itself the task of
deciding that which the minor if he were an adult would have done
himself, namely, whether it is beneficial or not to become separate;
It IS not a fresh expresMon of volition by the Court; the volition was
already expressed by the guardian on behalf of the minor, the Court
puts the seal of approval on it in the place of the minor and for
him. It lb open to the minor on attaining majority to elect to
abandon or continue the suit. If he elects to continue, he adopts
ihe act of the guardian and puls his own imprimatur on il and the
Court is no longer called upon to pronounce its opinion upon it;
the minor becomes separated from the date of the plaint. And if
he elects to abandon the suit, the minor continues to be an undivided
member of the family and he must be deemed to have revoked the
inlenlion to ^eparale”, Rama Ran v Vcnhatasiibhayya (1937) 46 M L W ,
.309; A.I R , 19,37, Ma<l , 274, 276. 277, krnhnaswanu v Pulukaruppa
(1924) 48 Mad, 465, .b// Ranga Thathaihari v. Srinivasa (1927) .50
Mad., 866, Akhamma v. Sriianga Raja A.I R , 1930, Mad., 486,
Canapathy v. Sulnamanyam ( 1929) 52 Mad , 845, Satvol/tama Pat v
Govinda Pai A.I R, 1937, Mad, II, 44 M L W., 692 (in llu* cave of a
suit instituted in forma pauperis on behalf of minor coparceners, the
date of the presentation of the application for leave to sue in forma
pauperis is the date from which division in status takes effect).

(/jl) Atul Krishna Roy v Lala Nandanji (1935) 14 F^at., 7.32 F.B.;
Krishna Lai v. Nandeshvar (1918) 4 P.LJ., 38.

io) (1918) 41 Mad., 442
(p) (1934) 57 Mad, 95 F.B.

Minor’s suit
fui partition.

504

PVKllllON

1 ( llAP. XI,

Date of
partition.

Dedth of
minor pi'iiding
'•Ult

srparalion only lakes plate when ihe suit js tletieed U/) The
Lahoie and Boniliay High Couilb take the same view (/)

In answeiing the question vvhcthei in such a case the
partition takes efIecL Jioin the date of the suit or fiom the
date of the deciee, it has to be lemembeied that it is open to
the other copauener to agiee to the division or to claim a
division himself In that case, it is obvious that the separa-
tion must take effect even beloie the date of the decree The
other copaiceneis have in truth no light to dispute the
minor copaiceiiers right to daim a paitilion but only to
ask the Couit to hold as a matte i of disci etion that the
partition was inexpedient in the mteiests of the minoi. Wheie
a decree for paitition at the instance of a minor is made, it
IS an adjudication that the paititioii was piopeily claimed
on the date of lli(‘ ^iiit and it must therefore relate back to
that date. The view taken by the full Bench of
ihe IMadias High (ouil would seem to be nol onlv the inoK'
logical view, but is also the b(*ttc‘i one liom ihe point of
view of convennmc

But It IS by no nu'ans i leai lhal. wlnni'a minoi die^ bc’-
foie the CouiL dei ides that the suit is foi his benehl, a legal
lepiesentaliv e who can come in only if the mrnoi has become
scpaialcdin intcicst, is entitlecl to( ontmue the suit for his or her
own bcnefil. foi, llieit* could be no benefit to the inirioi when
he IS dead Where a mollun sues as the next fiiend of a
minoi foi jiaililioii, it is difiicult to see how her light to
act on his litdialf < an oiclinaiilv be disjnited and the
([uestion wlu'tliei the suit is foi the Ixmefil ol lh(‘ minor oi not
(an fairly ai ist' onlv wlnue a lu'xl fiiend who is not the mothei
OI a (opaKc'inn m the I arm I v sues hn partition purporting
to act on bidialf of the minoi Is) riieie can how^ever be no
doubt that whim a lather and his minoi sons sue loi partition,
a separation so far as his bianch of the familv is concerned
is at once effcnled The* fathci's light to nqiaiale his sons

{q) Lalta i^/usad \ S/i Mahadeoji Ihrajman Temple (1920) 42
All, 461, sec Ram i\armn v Mt Makhna AIR, 1935, All, 875, 877,
882.

(r) Ilansingh v Pulamsinfih AIR, 1936 Ldli 501, ( hhotabcii v
Dadabhai AIR, 1935, Horn, 5f

(s) It IS after all a rule of praclice and convenience and the
question as to the dc^sirahility of a next friend suing for partition
should h(‘ disposed of and leave granted or refused at an early stage
hy the Coiiit before the merits of the litigation are entered upon

PARAS. 452-4S4.] RENUNCIATION OF INTEREST.

565

from the others as well as fiom himself under the Mitakshara
law is undoubted (^) .

§ 453. A reference to an arbitration or a claim before Arbitration,
an arbitrator or an agreement appointing a person to parti-
tion the pioperty would constitute a separation from that
date. The fact that no award is made subsequently, will
not amount to a renunciation of the intention to separate (a) .

§ 451. Sepal ation of a ( oparcener may be effected by re- Renunciation,
nunciation of his interest in the (ainily pioperty. Yajnavalkya
says: “The sepaiation of one, who is able to support himself
and is not dcsiious of partition, may be (‘ompelled by giving
him some liifle” (i;) The Mitakshaia adds* ‘"The male

issue of a coparcener who renounces also lose their
claim” fzc). But this can apply only to aftei-born sons
unless at the lime of renunciation, his sons and grandsons
are adults and consent to it. The giving of a trifle is only as
a token and fs not essential ix). Tn Alliu t 1' cnLatapalhi \.

Darituliui I' enkatanaf asimha? a ju, the Pi ivy Council held that
a coparcenei’s icnunciation merely extinguishes his interest
ill the estate but does not affect the status of the remaining
memliers quoad the fainilv jiioperty and that they continue to
he copan eneis as before The only effei t of renunciation
IS to leduce the numbei of peisons to whom shares v/ould
be allotted if and when a division of the estate lakes

place ( y) Bui the relinquishment hv one coparcener must

(r) The opinion to the contiarv e\presse<l in Ganapathy v

Subrahmanux (1929) 52 Mad, 815 cannot he treated a9 good law.

The decision itself is not good law after the Full Bench decision in
Rangasayi v Nagarathna (1951) 57 Mad., 95 FB.

(u) Syed kasiim v Jojaivarsingh (1922) 49 I A, 358, 5() Cal,

84, Harkishan v Paitap A.I R 1938 PC, 189, Krishna v Halarani
(1896) 19 Mad, 290, Subboraya v Sadashiv (1897) 20 Mad, 490,

Balmuhiind v Mt Sohano (1929) 8 Pat, 153 (a claim before arlii-
iratois) , Ranihali v Khaniman Lai (1929) 51 All, 1, Imt see Shantihil
V Miinshdal (19.32 ) 56 Bom, 595

(c) Yajn., 11, 116, Mann, IX, 207, Apararka considers that the

text applies only to propiTly lointly acquired and not to ancestral

property, see Apararka tian*', 21 AI L J , Journal, 50

iiv) Mit., I, II, 11, 12, 13, Smritichandrika, II, 1, 40, V. May,

IV, 111 , 16, Viramil, 11, 115 ed , 126) Jha, ll.L.S , H

154-156

(r) Sudarsana Malstr^ v Narasimhalii (1902) 25 Mad, 149, 156,

Thangavelu v. Doraisami (1914) 27 MLJ, 272, Veeranimal v Kamii
(1915) 2 ML.W, 850

(y) (1936) 63 I A, 197, 402 1 1 9371 Mad, 1, 6 In Penaswami

\ Penaswami (1878) 5 I.A , 61, 71, 1 Mad, 312, in considering the
effect of renunciation hy one branch with respect to an impartible
estate, the Privy Council said that such a renunciation would not
deprive the descendants of the separating coparcener of such future
lights of succession as they might afterwards have to that property,
treating it as separate pioperty quoad them.

566

PARTITION.

[chap. XI,

Marriage
under Art III
of 1872

Sale by one
coparcener to
anothei

Special share*;

formerly

allowed.

be in favour of all the others and not in favour of some
only, nor confined to part only of the joint estate (z).

§ 455. Just as the conversion of a coparcener to a
different relip;ion effects his severance, the marriage under the
Special Marriage Act (III of 1872) of any coparcener in an
undivided family, who professes the Hindu, Buddhist, Sikh or
Jama religion effects his severance from that family (a).

Wheie a coparcener sells his interest in all or some of
the propel ties, in provinces where he is competent to do so,
to the other coparceners in the family, he becomes divided
from them in lespert of such properties (h)

§ 456. Fourthly, the mode of division: — Partition
amongst copaiceners was declared to he of two kinds by
Bnhaspati, one in accordance with priority of birth and the
other, allotment of equal hhaies(c). But the piinciple of
Hindu law is equality of division and the exceptions to
that lule have almost disappeared (d) One of these exceji-
lions was in favour of the eldest son, who was originally
entitled to a special share on partition, either a tenth or a
twentieth in excess of the otheis, or some special chattel, or
an extra poition of the flocks (e) Unequal partition of
ancestral or joint properly was fiom early times condemned
The Smritiehandiika, the Vyavahaia Mayukha and the
Viiamitiodaya declare that unequal paitition is forbidden
in the Kali age (/) As early as the Aithasaslia of Kautilya,
a fathei was forbidden to make any distinction in dividing
his property amongst his sons (g)

( 2 ) S<"p ante §38.^ and tlie eases cited theie, Tiilsi Bai \ Ilaji
rinhhsh AIR 1938 Lab 478

(a) Act Til of 1872, section 22

(b) Lahshmi Atlu v ISaravanasami (1930) 53 Mad, 188, 195,
following Balakrii^hna v Satitrihai (1879) 3 Bom, 54, Jogannadha
Rao V Rarnanna (1917) 2 M L 1, 386, AIR, 1937, Mad, 461

(c) Brih. XXV, 7, Mu, T, n, 8

id) See Rajangam Aivar v Rajangam Anar (1923) 50 TA, 134,
46 Mad, 373, Venkatareddi v kuppareddi (1918) M.W N , 680,
biibba Rao v. Subbarao AIR, 1936, Mad , 689

(e) Apastarnlia, II, 6, 14. 10-13, Baudli , 11, 2, 2-5, Gant, XXVIII,
11, 12, Vas, XVll, 42-45, Mann, IX, 112, 111, 156, Nar , XllT, 13,
Devala, Dig, 11, 215, Brih , t/i , 217, Harita /// . 218, Yajn , II, 114,
Viramit , p 51, 9 (Seiliir’s <*d , 313)

(/) Smritichandrika, 111, 16, \ May, IV, j\, 11, Viramit , III,
16 (Setbirs ed.. 319).

(g) Shamasastn, 198, Dr Jolly says that unequal division has
disappeared and become obsolete from early times except as a matter
of special custom, L ^ (\ 180,

PARAS. 456 - 458 .]

PARTIAL PARTITION.

567

As between brothers or other relations absolute equality
is now the invariable rule in all the provinces (A), unless,
perhaps, where some special family custom to the contrary is
made out (/) ; and this rule equally applies whether the
partition is made by the father, or after his death (/).

§ 457. Even in the case of father’s self-acquired pro-
perty, equality was the rule though more exceptions were
recognised But it is obvious that in modern Hindu law it is
merely a nioial precept: a father under the Mitakshara
law in dealing with his separate property (A) and a father
under the Dayabhaga law in dealing with any property (/)
may therefore distribute it in any way he likes.

§ 458. Partition may be either total or partial {m), A
partition may be partial either as regards the persons making
it or the projierty divided in).

It is open to the members of a joint family to sever in
interest in respect of a part of the joint estate while letaming
their status of a joint family and holding the rest as the
properties of an undivided family (o).

(h) Mitak«?hara, i, 2, §6, i, 3, §§1-7; Smritichandrika, ii, 2,
§2, 11 , 3, §§16-24; Madhaviya, §9; V May, iv, 4, §§8-11, 14, 17;
Daya Bhaga, iii, 2, §27, D.K.S., vii, §§12, 13; Viramit., p. 60, §11,
p. 70, § 14. The case of an adopted son, where natural-born sont
afterw'ards come into existence, has been discussed, ante § 192,

(i) Sheo Buksh v Futleh 2 S D., 265 (340); 2 W. MacN,, 16,
As to agreements to divide in particular shares, see Ram Nirunjun v.
Pravag (1882) 8 Cal., 138

(;) Bhyrochund v. Russomunee 1 S.D., 28 (36) ; Neelkaunt ▼.
Munee ib., 58 (77) ; Taliwar v. Puhlwand 3 S.D., 301 (402) ; Laksh-
man v. Ramachandra (1877) 1 Bom., 561; Nand Ram v. Mangal Sen
(1909) 31 All. 359, 362 3 The acquirei’s special share has already
been discussed, ante §§291, 292, 297

ih) Yajn., IT, 114, 116, Narada, XIII, 15, 16, Mit , I, ii, 6, 13, 14.
The author of the Smritichandrika sums up his argument upon the
point by saying, “It is hence settled that unequal distribution made
by the father, even of his own self-acquired property, according to
his whims, without regard to the restrictions contained in the sastras,
is not maintainable, where sons are dissatisfied with such distribution*’.
(II, 1, 17-24).

(/) Dayabhaga, II, 15-20, 35, 47, 56, 73, 86, D.K.S , VI, 16;
Raghunandana II, 2-6, 26-29

(m) Rewan Persad v Radha Beeby (1846) 4 MIA., 137, 168.

{n) Appovier v Rama Subba Aiyan (1866) 11 M.I.A., 75, 90;
Siidarsana Maistri v Narasimhalii (1902) 25 Mad., 149, 157,

Muthustvami v. Nallakiilanthai (1895) 18 Mad, 418

(o) Ramalinga v Narayana (1922) 49 I A., 168, 45 Mad, 489;
A.I.R, 1922, P.C., 20; 26 C.W.N., 929; the passage above cited which
appears in the original judgment is reported in the AIR volume
and C.W N. volume but does not appear in the extracts from the
judgment given in 49 I.A., 168 or in 45 Mad., 489, Manickamchetty
V. Kamalam (1937) 1 M L.J , 95, 97, Jagannatha Rao v. Ramanna
(1937) 2 M.L..T., 386; Gavnshankar v, Atmaram (1894) 18 Bom., 611.

Now obsolete.

Where
property is
self-acquired.

Paitition
partial or
total.

Partial as to
properties.

PARTITION

fciIAP KI,

r>68

Partial as
lo per so 11

Partial

s(*paialM)!i

Any one coparcener may sepaiate fiom the otheis, but
no copaicener except the fathci or grandfather, can compel
the others to become sepaiate amongst themselves A fathei
may separate from all oi fiom some of his sons, remaining
joint with the other sons or leaving them to fonlinue a joint
family with each other ip) A scpaiation between copai*
(eneis. for instant e. between two brothers, does lunthei
necessarily nor even oidinarily involve a sepaialion between
1‘ithei of the topareeneis and his own sons {(f).

The view taken in some eailv (ases(/L that wlioit
one l)ioth(‘i separates from the otheis and these* (ontinne to
live as joint familv, it must be presumed that iheie lias beeni
a ( oinplete separation ol all the biotheis. but that those* who
ronlinue' joint have le-united e anneil be* regardeel as
good law (5) As was observetl in Balahnx \ Rah fun a hoi. m
many cases, it may be neeessaiv in order to ascertain the
share of the outgoing membei to fix the shares which the
other coparceners are or woulel be entitled lo and in this
sense, subject to the ejiiestiem whether these others have
agreed lo remain united or to 1 ('-unite, the sepaiation of oni*
IS bdid lo be a viilual separation ol all (/) In Balknshno
V Rarnkrisluia in) , Sir Geoige Lowndes, deliveiing the
judgment of the Board, adopted the statement of the law bs
Sir fohn Ldge m Palani inunal \ Mut/in I enhatatrhala (rM

(fj) Mu, r 11 2 W & B, 661 St iif'odd V Mi'fhu (P)21) 17
Mad, %7

(</) Ilan Bahsh \ Hahn Iai! 1 1021 i ")1 I \ 16) 170 > Lah ,

02, Deputy (Umimr \ Sheonath \ I K 1027 Ondli 1 10, 2 Lurk
430

(r) hiduh ( hunder \ Benodbehar ry 1 Hvdf , 214, Betambiir \
Uunsh (hunder 15 AV R , 200, heshuhrani \ \f/nd Kishort 1 Bl l{

( A ( ] I, 7, 11 K . 108

(6) Upendra \ (lopimith 088.1) 0 ( al , 817 Hiita v Chintaniani
(1885) 12 Cdl , 262, Sudarsana Maistri ^ ISarasimha/u (1002) 23
Mad, 149, 157, Ran^anatha v ISardyanasu'ami (1008) 31 Mad 182
Rangaywami v. Sinidararajulii (1916) 31 \f L J , 472

it) Alluri V Dautalun (19.36) 63 lA .307 [10371 Mad, 1,

BaUihiix V RakJimabni (1903) .30 I A, 1.10, 30 (^al , 725, Jatti v
Bunnnri Lai (1923) 30 I A 102, 1 Lah, .130, Rudiaiiouda \ Piasan
stonda AIR 1938 Bom, 237, Pratiil (handra \ Pinna ( fiandra (10113)
66 ('Ll, 324, AIR 1038 (al 281

(u) (1931) 58 I A, 220, .33 All, .100

(r) (1925) .32 T \ , 8% 48 Mad, 234, see pci Bhashyani Avyanaai
1, in Sudarsanani Maistri v ISarasimhahi (1902) 25 Mad, 149, 1.37,
see aLo Babanna v Parana (1926) 30 Bom, 813, Ma/tand v Radhabai
(19.30) 54 Bom, 616, ^aheb Cauda v Basangouda AIR, 1931, Born
378, Piyarelal \ Chunilal AIR 1013 All, 103 Ramnarain Saha
V Mt Mahhna AIR, 1933, All, 873, Kanyalal v Banwarilal AIR
10.36 r al , 269, Deputy Comnir , Partabgarh v Sheonath 2 lurk
450, A LR., 1927, Ondh, 149, in .32 T.A., 8.3 (supra) it was said

PARAS. 458-459 ]

SPITS FOR PARTITION.

569

“It is now hevonJ doubt that a member of a joint family
ran separate hirnsclf Irom the other members of the joint
family and is, on ‘reparation, entitled to have hi**
share in the property of the joint family ascertained and
partitioned off foi him, and that the remaining coparceners,
without any special agreement amongst themselves, may
continue to be coparceners and to enjoy as members of a
joint famil) what remained after such a paitition of the
family proper tv That the remaining membeis continued to
be joint may, if dnspnled, be inferred from the way in whi(‘ii
their famil\ business was (airied on aftei then pievious
coparcener has separated from them” This seems to be a
much more satisfactoiv method of dealing with the question
than fust to iiuoke a |)icsumption ot a general partition
which was never intended, and then to supei impose upon it
the second h‘gal hrtion ol a reunion, winch never in
fad took place (wO.

I 'rider the l)a>abhaga law , the separation of one of the
brothers from the rest does not even puma facie amount to
a sejiaration of all, for thme in addition to a mme intention
to scfiaidte, there niu*^l be a diMsioii ol piop('il\ b\ metes
and hounds nr order to effectuate a partition (x).

159 In a partition suit all the coparceners must be
before the Couil eithei as jilainliffs oi as defendants (y) .
An\ ( oparr eiici or (o-shaior who sues for partition of pro-
perty must make the other coparceners or ro-shareis defendants
because the partition which is made in his favoui is a
partition against his coparceners or co-shaieis Any decree
which gives him a portion of the property takes away all
lights which they would otherwise have to that poition, and
therefore it is a decree against them and in his favour. A
decree for partition made in a suit instituted by a iriembcr
of a joint Hindu family is theiefoie res judicata as between

ihat in a smt fni paitilion which piocecds to a decree, the decree
lot partituni is tin ( videm < to show whether the separation was onlv
j ‘sppdidtion of one c(»p«'n<"ener from others or of all the members
of the joint fdinih fioin each other

fre) Halabux v Rakhmabai (1903) 30 I A., 130, 30 Cal, 725,
Rami)ershad v Lallapathi (1905) 30 1 A, J, 30 Cal, 2.)1 , Han Baksh
\ Rabu ImI (1924<) 51 I A 163, 5 Lah , 92 A fatal objc-ction to
ihis theory is that the firtJlioiis reunion could not take place in law
<\ccpt betwtdi falhei and ‘-ons hiollicis, .ind uncle and nephew

(c) Goiirhau v Slnani Sunder AIR, 1934, Cal, 824, 38 C W' N ,
977, Upendra Naruin v Gopce Nath (1883) 9 ( al , 817

(v) Nalinikanla \ Siiinammee (1911) 41 I A , 247, 219, 19 C.W N
551, Rnhatadh v Mt Larhmunbiitty 12 W R., 256.

DiIN ahhaji^a
law

Ml must he
parties to
511 It

Res ]udnata

PARTITION.

[chap. XL

570

all who are parties to the suit (z). Besides the coparceners,
the wife, mother or grandmother, when entitled to shares on
partition are necessary parties to the suit as well as the pur-
chaser of a coparcener’s interest (a).

Where the partition is claimed as between branches of
the family only, the heads of all the branches alone
need be made parties (b). Of course in such a case, it is
open to the others to apply to be made parties Those
members of the family who are entitled to maintenance
would he pioper parlies to a suit for paitition. So too, the
joindei of ci(‘ditors and in particular of decree-holders as
well as of mortgagees as defendants mav he proper in rases
wheie then claims aie disputed (c).

§ 460 Every suit for a partition should ordinarily em-
hiace all joint family properties id) Such a suit, however,
property. he confined to a division of property which is available

at the time for an actual division and not meiely foi a division
of right (e) Ordinarily a suit for partial paitition does not
he but m this sense, a suit for partial paitition will he when

Partition
suit should

(z) Nahnihanta v Sarnamoyee (1914) 41 I A, 247, 19 C W.N ,
531, In Palani Ammal v Muthuvenkatachala (1925) 52 1 A , 83, 48
Mad , 254, the Privy Council observed that “in a suit for partition,
no etTeclive deriee can be made for a partition unless all the copar
leners whose addresses are known are parties to the suit and tliat
It IS the deint alone which can be evidence of what was decreed*’
Ejaz Ahmad \ Saghir Bano (1929) 51 All, 850, Munnt Bibi v Tirlohi
JSath (1931) 58 I \ 158, 53 Ml, 103 (ns jiiduata betw^ecn (o
defendants)

(а) Dun V Tadepatn (1910) 33 Mad . 246 (puichaser) In

Sadu V Ram (1892) 16 Born, 608, the joinder of both purchasers
and niortgag:ees is referrtil to Bui a mortgagee will not be a act cssar\
party, for he is only entitled to the properties allotted to his alienor
‘•'ee Mahommnd 4fzal Khan v Abdul Rahim (1932) 59 1 A , 405, 13
Lah., 702, Laljcet Singh \ Rajeoomar (1874) 12 Beuig LR, 173, 38.5

(б) Prahladh v Luchmunhiitt\ (1869) 12 W R , 256, Digambar v.
Dhanraj (1922) 1 Pat, 361, Bishambar Das v Kanshiprasad (1932)
13 Lah, 483, Thakarsingh v Sant^ingh A.I R , 1933, Lah, 465;
Subba Rao v Subha Rao AIR, 1936, Mad , 689

(c) Skimmuka Nadan v Arunachelam Chetty (1922) 45 Mad,
194, Annamalai Chettiar v Koothappiidayar (1933) 38 MLW, 280

id) Manu. ix. M7, Rajendra Kumar v Brojendra A.I.R. 1923
Cal, .501, .504, .37 ( LJ, 191, Koer Hasrnat Rai v Sunder Dat (1885)
11 Cal, 396, Trimbak v Nara\an (1874) 11 Bom HC, 68, 71,

Shivmurtappa v Virappa (1900) 24 Bom, 128 Haridas v Pram
Nath (1886) 12 Cal., 566, Jogendro Nath v Jugobundhii (1887) 14
Cal, 122, Satyakumar v Satyaknpal (1909) 10 CLJ, 503 (partial
partition by private arrangement allowable) , Purushottam v, Atmaram
(1899) 23 Bom, .597, see Hem Chandra v Hemanta Kiimari (1914)
19 eWN, 356.

(e) Pattaravy v. Audimula (1870) 5 Mad HC, 419; Narayan v
Pandurang (1875) 12 Bom. H,C , 148, Krishtayya v. Narasmhai}

(1900) 23 Mad,, 608,

PARAS. 460-461.]

SUITS FOR PARTITION.

571

the portion excluded is not in the possession of coparceners
and may consequently be deemed not to be really available
for partition, as for instance, where part of the family pro-
perty is in the possession of a mortgagee or lessee (/), or is
an impartible zemindari (g), or held jointly with strangers
to the family who have no interest in the family partition (/t).
So also, partial partition by suit is allowed where different
portions of property lie in different jurisdictions (i)» or are
out of British India (y).

§ 461. Wheie a coparcener sues for partition of the pro-
perty in the hajids of the other coparceners, he must bring
into hotchpot any undivided property held by himself, even
though It is out of the jurisdiction of the Court, and thus
make a complete and final partition (A:). Where, however,
part of the property is out of India it has been laid down
that the Court need not lequire it to be bi ought into
account (Z) . H it were land, it is obvious, that it would
have to be dealt with under a system of law which would be
more properly administered by the Courts within whose

(/) (1870) 5 419, supra, (1875) 2 B.II.C., 148, supra;

(1900) 23 Mad, 608, supra, Narayan v. Pandurang (1875) 12 Bom.
H.C , 148; Ramaswami v. Alagiriswami (1904) 27 Mad., 361 (les^^ee) ,
Rajendrakumar v. Brojendrakumar (1923) 37 C.L.J., 191, A.I R., 1923 Cal.,
501, Pakkirikanm v. Manjoor Saheb (1923) 46 Mad, 844 (where a dis-
tinction IS made between partition of common properly and of joint
property, so far as liability to dismissal is concerned) ; Thakarsingh

V Santsingh A I.R , 1933, Lab., 465, Subtamama v Ramachandra Ran
(1924) 47 MLJ, 908, Moti v. Amarthand AIR, 1933, Bom, 121
(mortgagee entitled to possession)

(g) Parvati v. Tirumalai (1887) 10 Mad., 334, Malikarjuna v.
Durga Prasad (1894) 27 I A , 151, 24 Mad., 147.

(A) Purushottam v Atmaram (1899) 23 Bom., 597; Lachmi v. Janaki
(1901) 23 All, 216

(z) (1923) 37 C.L.J., 191, A.I.R. 1923 Cal., 501, 503 supra,
Han V. Ganapat Ran (1883) 7 Bom., 272, 278; Siibba Rau

V Ramarau (1867) 3 Mad. H C , 376, Jairam v Atmaram (1880)
4 Bom., 482; Punchaniin MiiUick v. Sib Chunder (1887) 14 Cal., 835,
Balaram v. Ramachandra (1898) 22 Bom, 922, Abdul Karim v.
Badrudeen (1905) 28 Mad., 216.

(;) Ramacharya v. Anantacharya (1894) 18 Bom., 389, (1887)
14 Cal, 835, supra, see Rajangam Aiyar v Rajangam Aiyar (1923)
50 T A , 134 , 46 Mad , 373, where partition of properties in British
India alone was made. See section 16, explanation and section 17
of the C. P. Code where properties aie in different jurisdictions;
Knshnaji v. Gajanan (1909) 33 Bom., 373, Nilkanth v Vidya

Narasinh (1930) 57 l.A , 194, 54 Bom., 495.

(k) Ram Lochun v. Rughoobur (1871) 15 W.R, 111, Lalljeet v.
Rajeoomar (1876) 25 W.R., 3.53, Han Narayan v. Ganpatrav (1883)
7 Bom, 272; per curiam (1898) 22 Bom., 922, 928; Satyakumar v.
Satyakripal (1%9) 10 C L.J , .503, Venkatanarasimha v. Bhashyakarlu
(1899) 22 Mad. .538.

(/) Ramacharya v. Anantacharya (1894) 18 Bom., 389,

Bringing into
hotchpot.

572

PARTITION

[chap. XI,

Partition
pi (Slimed to
be (.omplete

MdV he
partial

jun<=^Hi( lion il IS situated Of eourse properly excluded fiom
paitition ( ontmues joint piopeitv and is available for
^ub^'Ccjiient division im)

^ 162 Where there has been a pailition, the presumption
IS that it was a complete one both as to jiaities and pro-
|)eil\ In I Thine is no picsumpLion that anv pioperlv was
excluded fiom paitilion On the (ontiaiv, the buideii lies
upon him who allepjes siith exclusion to establish his asser-
tion (o) The pi'esuinption, howevei, is one of fact and not
of law (/?). and its sliength must netessaiilv \ary with the
( iicumstaiH (‘s of each ( ase The ([uestion always is wbelht^r
the parties intended the tiaitilion to lx* coinph'le either as to
parties ot as to piopeities or as to both ( 7 )

As already stated Ho), iheie may be a partial division
of su( h a natuie that tin* (opaHinaiy (eases as to some of
the })iop{*itv and ( ontimies as to tlx* i(*st (j ) Tin* \ieyv
(‘Xpiessed in some of the cases that theie must be
an express 01 spcxual a^nxmient to eonlinue to hold the lest

ini) Bhouani \ Juggfjnath (1908) ] -5 ( WN, i09, Monsharani

( hakravarti v Ganvsh ( liundra (1912) 17 C \V N , 521, Pnrushottam
\ itmaunii (1899) 23 Bom 597 (sitond suit for paililion in respect
of [xoperlies not partitioned befoie is not iiaired)

(/I) Halabux v Ruhhmabai (1901) 30 I A, 130, 30 Cal, 725

(partus), JattL \ Baniiiudal (1921) )0 I \ , 192 4 Lah , 350

([laities) Balkushna \ Ramkrishnn (1931) 58 lA, 220, 53 All,
’()() (iiailifs), \ (t dMinalbirr v ii\asiv(nn\ iiycr (1909) 32 Mad

191 ( pro])( rlios ) , SitbbdK ddt v ilagammal (1918) 14 MLJ, 596

(pioptilRs) Kiimarapim ( hrttnif v Adaikkulani (1932) 55 Mad

183, lollouiiip Kailas v Bija, (1922) 36 ( LJ, til, Kanshi Ram

\ L)iini( hand \1K, PJll-, Lab, 707, Puinima Debya v Nand Lai

(1932) 11 i\il , 50, 81, Anandibai v Hansuba (1911) 35 Bom, 293
Karan ^ingh \ Bitdh Km A ! K 1938 Ml , 312, Narmadubai v Rup-
'.ingh \ I K 1938 Boin , 69. Dattati i\a s Shankar \ FK 19^8 Bom,
250

(o) (19.12) 55 Mad, 183, siipniy ISaiayan v I\ana Manohar (1870)

7 B 11 C . A ( J , 153 Ram (.handra v lukaiam (1921) !5 Bom,
914, Rudragouda \ Basangouda (1918) 40 Bom LK 202, AIR

19J8 Bom. 257

(p) Han Baksh \ Babiilal (1924) 51 I A, 163, 5 Lah, 92,
Palaniarnmal v Muthuvcnkatachela (1925) 52 1 A , 83, 18 Mad, 254,
Balkrishna v Ranihrishna (1911) 58 lA, 220, 51 Ml, 100

iq) Babanna v Paratva (1926) .50 Bom, 815, 829

(r) Apoout^r \ Rarnasnbbicr (1866) 11 M T A 75, 90, Ramalinga
V Narayana (1922) 19 lA, 168, 26 (J AV N , 929 Kandasami \

Doraisanu (1880) 2 Mad, 121, the Cab iitta Ilijih ( ouit con‘^ideis
that a partial diMsmn inav h(* effected by arranfJieim nt hut not h\
slut, Radha Churn v Kripa (1880) 5 (’al 474, but the observations
of the Piivv ( ouncil in J*alaniammars i as(‘ (52 1 A 83, 87) show
that the que'^tion would depend upon the decree for partition wlicthei
il is complete or partial as to peisons or pioperlit*s Where no ohjec
tion is raised 01 pu ss* d m a suit for paitial paitition, th<*ie js no reason
whv a deeiee should not lx* passed as le^jarcL the pioperlies in the suit.

PARAS. 462-161 J

SUITS FOR PARTITION.

573

of the property as undnjded is contrary to the statement of
the law in Appoviei^s case and in Ramalinga \ !\atayana(s) ,
Where the coparcenary ceases as to some of the properties
but not as to the rest, the lights of inheritance and alienation
differ according as the property in question belongs to the
members in their diyided or in their undiyided capacity (^).

§ 46.1 The shaie of an adult coparcenei who sues for
partition is ascertained as on the date of the suit and is neither
diminished nor augmented by births and deaths in the
family as was once supposed. If he dies without obtain-
ing a decree, his widow or other legal repiesentaliyc is en
tilled to continue the suit and inherit his share (u). The
shares of the other coparceners however who are parties to
the suit will bo affected by changes in the family unless the\
cleaily expiess their intention to diMflc. in then defences ui
otherwise in the couise of the «init, for. while the institution
of a plaint ( launing a shaie s('\prs the plaintiff m nilei(M
from the le*^! ol the i oparc enei''. it ( annol bv itself sepaiatc
the otheis itUet sc (i;) As the wife, mother oi giandmothm
has. apart fioin the recent Ad, no ownersliip of any shaie
until actual diyision. hei death will l(‘ave any shaie assigned
to hei by the prelnninaiy deeu'c an integral jiail of llu'
piuperty available foi division (i;M

§ 464 Where a stiangei to the family acepnu's a title to a
poition of the family piopeit), by pin chase or under an
execution his lemecly is by suit to compel his veridoi to come
to a jiaitition, and so give him an absolute title But he
( aiiriot demand a ])dilition nieiely as to the poition oyei

(s) lia\jng regaid llie ()l)‘'Or\dlions in RamaLinga v Narayana
(1922) 49 1 A , 168 that no spr< lal agreement is necessary, the observa
tion^' m Gaiuishunkur v Almaiam (1894) 18 Bom., 611, would seem
to be right and not tin observations in f)agadu Govind v. Sakhubai
(1923) 17 Bom , 773, 777 and in Martand \ Radhnhai (1930) 54 Bom ,
616. The decision in Rem Prosad \ Mt Gurdevi (1923) 4 Lah., 252
has been di^vnted fiom in Mohatisingh \ Mt Gutdtn (1931) 12 Lah
767, 774, Kiiniarappa Chettun \ 'idaikkaiam (1932) 55 Mad., 483,
Miithusanu v N allakuUintha (189.5) 18 Mad, 418; Ajodhya Pershad
\ Mahadeopershad (1909) 14 C.W N., 221. In Annamalai Chetty v
Munigesa (1903) 30 lA, 220, 26 Mad., 544, the division of some
propeity whih the otliei ])iop<ilv lemaim'd undivided was lield to he
ineffectual to change the undividetl status of the family.

(f) Katarna Nachiar \ Raja o} bhivaganga (1863) 9 M.I A , 539,
543.

(a) Girjahai v Sadashiv Dhiinditaj (1916) 43 I A., 151, 43 Cal,
1031; Syed Kasiim v Jotaivarsnigh (1922) 49 lA, 358, .50 ( al . 84
Sakharam v tianknshna (1882) 6 Bom, 113 is no longei law

iv) The dictum in Dnttatraya v Ptabhakai AIK 1937 Bom, 202
that it separates all the topaiceneis is due to a misconception

(d) Sheo Dyal \ Judootmth (1868) 8 W.R., 61, Krishna Lal \
Nandeshwar (1919) 4 PLJ., 38, Raoji v. Anant (1918) 42 Bom, 535,
Pratapmull v Dhanabhati (1936) 63 I.A., 33, 63 Cal, 691.

Biilhs and

deaths

pending suit.

Suit for
partition by
stranger

5?4

PAKTirlON

[chap. \i,

Against

slrangei.

which ho has claim (ii;). The vendoi must have a complete
and final partition, so that all the family accounts may be
taken against him, and all the other members of the family
must be made paitie^ to the suit (§§ 386, 388) Whcie the
land to be partitioned is in possession of a tenant the shares
mav be allotted subject to the tenancy undei Civ. P. C , Or. 21,
R. 36.

Wheie the suit loi partition is I)i ought by othei inemboi^
of the familv. m ordei to get iid of the joint possession
of the stranger, it has been held by the Madras, Allahabad
and Bombay High Courts that the suit may be limited to
their share in the paiticular pauel of family pioperty which
had been sold(,t;). On the other hand the Calcutta High
Court has ruled that in this case, as m all others, the suit
must be one for a complete partition, and that this is not a
mere technical objection, because on paitition of the whole
of the joint family property, the whole land so alienated by
a single membei might fall entiiely to the share of the
alienoi (y) Where the dispute is wholly between stiangcis
to the family, each of whom claims against the other an
interest in the family property, they can sue to obtain
possession of then own inteiesl without claiming a general
pditition (j). Where the suit is by one membei of the
family to asseit his light to joint possession against the
wrongful acts of other members, no suit for a partition is
necessary. He has a right to leniaiii, and to enjoy the rights
appiopriate. to a copaicenei. A jot lion, a membei ol ifn'

(iv) \ enkatanuud v Mccni Labbai (1890) Mad, 275, M<injn\a

V S/iariniiiffa (1915) 58 Mad, 684, Pnndurnnf* v Phaskar (1874) 11
B(»m fl f R , 72, Vdorom v Rami (1874) 11 Bom ll C R , 76, Miirar
Rdo V Sitdnuna (1898) 25 Bom, 181, Ishtdppd v Krishud (1922)
46 Bom, 925, Iml sec Rani Mohanlal v. Mulchand (1906) 28 All, 39

(\) ( hinna Santuna^i \ Sdr\d (1882) 5 Mad, J96 Subn/nuond
\ f*udnidnabhd (1896) 19 Mad, 267, Ibilanthonan v Masakonan

(1897) 20 Mad, 245, Iburamsa Roivthan v Tininialai (1911) 11 Mad,
269 FB , Ranidiaran v Ajud/ua Pvt shad (1906) 28 All, 50, Ifaiimd/h
das Ramdayal v V alabhdas Shankatdas (1919) 15 Bcmi , 17, Hunivan
Lai V Dn\a Shnnkvr (1909) 15 W N , 815, 816, sw Rajendm Kumar

V Rrojendra Kiimai A.I.R. 1925 Cal, 501, wlieic all llit‘ aiilhoriliob
are noticed.

(y) Koer Uusmai Rai \ Sunder Pis (1885) 11 Cal, 396

(z) Subbarazu v V enkataratnani (1892) 15 Mad, 2M Iburam^a
Rowther v Tirurna/ai (1911) 34 Mad, 269 FB, Kandaswami v
Venkataramn (1935) 65 xM L J , 696. Suranna v Subbarayudu (1933)
65 M.LJ , 769.

PARAS. 464 - 465 .] REOPENING PARTITION.

5?S

family after a division in status and before there is a division
by metes and bounds can sue for joint possession (a).

§ 465. The Partition Act (IV of 1893) empowers the Act IV of
Court, in its discretion, in a suit for partition to order a sale of
a propel l> instead of a division of the same on the request of
shareholders where the former course would be more con-
venient and beneficial. At such a sale, any coparcener may
have leave to buy at a valuation ordered by the Court. Where
a transferee of a share in a dwelling house, when he is not
a member of the family sues for partition, the Court may
instead of directing a partition direct the sale of the share
to any member of the family who agrees to buy it. Section
2 of the Act which is the principal provision runs thus: —

“Whenever in any suit for partition in which, if instituted
prior to the commencement of this Act, a decree for partition
might have been made, it appears to the Court that, by
reason of the natuie of the piopeity to which the suit relates,
or of the number of the shareholders therein or of any other
special circumstance, a division of the property cannot
reasonably or conveniently be made and that a sale of the
property and distribution of the pioceeds would be more
beneficial for all the shaieholders, the Court may, if it
thinks fit, on the request of any of such shareholders
interested individually or collectively to the extent of one
moiety or upwards, direct a sale of the property and a dis-
tribution of the proceeds”. Apart from the Act, it has been
held that the Court has an inherent power to refuse to divide
the propel ty by metes and bounds and to adopt such other
means as may appeal equitable for effecting a paitition (6).

466. Fifthly, reopening of partition: — Notwilh- Reopening of
standing the saying “once is the paitition made” (c), just as
paitial partition is lecogniscd by arrangement or otherwise in
(.Cl tain circumstances, so too a repaitition oi supplemental
paitition has always been recognised by Hindu law. Manu says
“If aftei all the debts and assets have been duly distributed
accoiding to the rule, any property be afterwards discoveied,
one must divide it equally” ((/). Yajnavalkya is even moie
definite: “The settled lulc is that coheirs should again divide
on equal terms that wealth which being concealed by one

(а) Ramchandra v Damodhar (1895) 20 Bom., 467, Naranbhai
V. Ranchod (1901) 26 Bom., 141; Bhau v. Budha Manaku (1926) 50
Bom., 204, 210; Sheodan Kurmi v. Balkaran Kurmi (1921) 43 AIL, 193.

(б) Subbamma v Veerayya (1931) 61 M.L.J., 552. For a decision
under ihe Act, see Bai Uirakore v. Trikamdas (1908) 32 Bom., 103.

(i ) Mann. IX. 47.

id) Manu, IX, 218.

576

PARTITION.

[chap \1

C ci««p of frand

Hounioii

Mitak<»bara

roheii from anothoi is discovered after pailition’ ( e) . The
Smritichandiika cites a text of Kat}avana to the effect that
'piopeity of which an unecfual distribution has been made
(•ontrar\ to law should be redistributed* So too pioperlv
lecovered after liein^ seized oi lost must also be disli i-
butedf/l In Mojo I jshvariaili \ (,ajipsh l^ilhaL it was

held that partition once effected is Irnal and can be leopened
only in case of fraud or mistake or subsequent lecovery of
the familv propeitv (/[>! A partition which is shown to be

prejudicial to the* mlerests of a mmoi copaicenei wull be sel
aside so fai as he is c'onceinc'd (//I Where* at a parti-
tion intended to be final some pail of the jnopertv
has been o\ei looked oi fiaudulenllv conc'ealed, but
IS afteiwaids discoxeied. it will be* the subject ol

ii like distribution amonp the jiersoiis who wt'ie paitn*-
to the oii^mal pailrlion oi then leptesentalives ( / ) Ihil
(lie* foinic*! (li*-! r rbulion v\ill not be opt'iied up a^airi (y>
(onversel). whc*ie ihrouph a mistake as ten oi ignoiance of
the title, pi Opel t\ has bc*en handc'd ovei to one menibei foi
his share, whicti a(l(*twaids turns oni to bc'long to a stiaiigei
oi to be (haigcd for his bc'iiefit the* peison who has received
siifh propeitv will be* <‘nlitlc‘d to i om})c*nsation out of tlv*
^haics of the others {h) Whc'K* how(‘\(n the* wdicde scheme
of disliibulion is fiaiiduh'iit whc'llu'i as regards a minor oi
otheiwisc, it will (whc'ie ne(c*ssai\i be set aside absolutelv
unless the p(*ison inpned has ac cpncsc c'cl m rt after full
knowledge that it was made* m Mokilion (d his nghtsi/l
^ U)/ 1 astiv cm the* subject id K(‘union, the* iiiles m tin

Milak^haia aie "‘fdb i Is. whn h had bc'c'u di\ rdcd and whn h an
again mi\c*d lc»gc*thc*i an* teimc*d leumted fie, l(^ whom sm h
appeitaim i- a i(*nniled pan (‘uei** ‘That cannot lake |Ma» ‘

(c) \aiM H, \ 2 () Mandlik J18 Mu 1 ix J
(/» Snintu lidiidi ika \l\ 7 8, Dd\al>luc^d Mil 1 )> -), \ iiaiml
II I 11 p 826, DifiC'-U 11 18t (/ St (/

( <187-51 10 Riun 111 H lit ftishtfuihtn \tilJi \ hala inr/i

\ 1 R 1087 P ( lO) 11 (. \\ N 68 M ukuiuUal Chakravnrti \

loges( handra 11916) 1 PbJ, 193, Kandum \ cnkuasnanu \ Bahgadu
(1916) 19 MLT, n, S ?s Haldci v S V \!alli(h (1923) 28 TWIN
13], Lathmau \ Saiiual (1878) 1 All, 54.3, Jngendm v lialadrh

(1907) 12 (. WN, 127, Bhouaiu v Jiiggcrnath (1908) 13 C.W.N., 309
(/i) Sec* ante ${426

(/) Kandum \ euhitasuaini \ Bahgadu (1916) 19 MLT, 43 (

htgendfo \ Bnladeo (1907) 35 Cal 961

(y) Mann, l\ 218 Mil, T, ix, 13. Da>dl)hai!:a, XJII, 1 3, 6
May, IV, VI, 3 wliat lias? alieadv been divided is not to be divided
apain’k D Bb , Xllf, 6

ik) Mariiti \ Rama (1897) 21 Honi 3.33 Lakshman v Gopal

(1899) 23 Bom, .38.5, Gancshi Lai v Babulal (1918) 40 All, 374
(/) Bull 11 186 Mann IX 17, l)aya])baga, Xllt, 5, Morn

Vishvanath v Gune^h (1873) 10 Bom. H C , 4U

PARA. 467.]

REUNION.

577

with any person indifferently; but with a father, a brother
or a paternal uncle”; as Brihaspati declaies “‘He, who, being
once separated, dwells again through affection with his
father, brother or a paternal uncle is termed reunited with
him” [m). The express mention by Brihaspati of father,
brother and paternal uncle has been held to be restrictive
and not merely illustrative (n). In Ram Narain Chaudhury v.

Pan Kuet (o), the Privy Council held, (1) that the text of
the Mitakshara is clear and unambiguous and excludes
recourse to the other authorities; and (2) that in a Hindu
family governed by the Mitakshara, a reunion is valid only
if it is with a father, brother or paternal uncle and only if
il is between parties to the partition. A reunion under the
Mitakshara law is therefoie legally possible only as
(1) between father and son, (2) between brothers, and
(3) between nephews and paternal uncle.

The DayabHaga is even more emphatic: “A reunion is Dayabhaga.
valid only with a father, brother or paternal uncle” (p).

The Vyavahara Mayukha says: “This reunion according Mayukha.
to the Mitakshara and others ‘can only take place with a
father, brother or paternal uncle, and not with any other’,
because no others are mentioned in the text. Properly
speaking the state of leunion should be co-extensivc
with the makers of partition. As for the word, ‘father
and the rest’, they are simply illustrative of the makers of
partition . . . Hence reunion may take place even with a wife,
a paternal grandfather, a brother’s grandson, a paternal
uncle’s son and the lest” {q). According to the rule of the

(m) Bnh , XXV, 7, Mit , II, IX, 2, 3, translation as corrected by
tlir decision in Basanta Kumar v. Jogendra Nath (1906) 33 Cal., 371,
374, Manu, IX, 210-212, Yaj., II, 138-139, Smnti Ch., XII, 1-28;
Madhaviya, §47, V. May., IV, ix, 1-25, Viramit. IV (Setlur’s ed.,
427-438). The Smritichandrika says that there can be no reunion
with relations other than a father, brothei or paternal uncle, Smriti-
chandrika, XII, 1, Sarasvativilasa, para 176, p. 139.

(/i) Basanta Kumar Singha v. Jogendra Nath Singha (1906) 33
Cal., 371.

io) (1935) 62 I.A., 16, 14 Pat., 268 affirming A.I.R. 1929

Pal., 353, Nana Oj/ia v. Parbhudat A.I.R. 1924 Pat., 647; Lakshmi-
dhar v. Knshna( handra A l.R. 1929 Pat., 548; Sadananda v. Bnikunthn-
nath A.IR. 1921 Pat., 298; Hira Singh v. Mt. Manglam (1928) 9
Lah., 324, Pichayya v. Sarvayya A.I.R. 1927 Mad., 1118.

ip) Dayabhaga, XII, 3-4, D.K.S., V, 4-5; Abhai Churn Janav v.
Mangal Jana (1892) 19 Cal., 634, 638, following Tarachand Chose v.
Pudum Lochiin Chose 5 W.R., 249, Copalchunder Daghoria v. Keno-
ram Daghoria 7 W.R., 35; and Ramhari Sarma v. Trihiram Sarma 7
Beng. L.R., 336; Balhishen Das v. Ramnarain Sahu (1903) 30 I A , 139,
30 Cal., 738, 753, Ahshay Chandra v. Uaridas (1908) 35 Cal., 721.

iq) V. May., IV, ix. 1; Maudlik, 84.

39

578

PARTITION.

[chap. XI,

Mithila law.

Evidence.

Minor.

Mayukha which is paramount in Guzerat, the island of
Bombay and in Northern Konkan, a valid reunion may take
place between any two or more parties to the original parti-
tion. But it has been held that if their descendants think
fit to reunite, it is not a reunion (r).

In the Mithila School, the Vivada Ratnakara and the
Vivada Chintamani take the enumeration in the text of
Bnhaspati as illustrative and not as restrictive and hold that
reunion is possible with any of the coheirs who have
separated. Reunion therefore is possible with anyone such
as a paternal uncle’s son(s).

468 As the piesumption is in favoui of union until a
partition is made out, so after a partition the presumption would
be against a reunion To establish it, it is neressaiy to show,
not only that the paities already divided, lived or traded
togethei, but that they did so with the intention of thereby
altering their status and of forming a joint estate with all its
usual incidents (f)

It would seem from an observation of the Privy Council
in Balabux v. Rakhmabai (zO that no agreement for a
reunion on behalf of a separated minor coparcener could
be made by his father or mother as his guardian. But it
must be lemeinbeied that as it is open to the father or
mother as his guaidian to effect a separation on behalf of
the minor coparcener, it would be equally open to the father
or mother as his guardian to agree to a reunion on behalf
of the minor. At any rate so far as the power of the father
IS concerned, the text of Brihaspati and the passage in the
Mitakshara, I, vi, 7 appear to be sufficient warrant (t;).

(r) Vibhianath \ Krishnaji (1866) 3 Bom H.C (A.CJ), 69,
Lakshmibai v Ganpat Moroba (1867) 4 Bom H C. (OCJ.), 150, 166

(5) Vivada Ratnakara, XXXV, 12 (Sarkar’s edn , page 91),
Vivada Chintamani, 301, bee as to the Mithila school, Basanta Kumar
V Jogendra Nath (1906) 33 Cal, 371, 375 The Vivada Chintamani
seems to go further and states that a reunion may be with a coheir
or even with a ‘stranger after the partition of wealth.

(t) Cited in Rajagopal v Veeraperumal (1927) 53 M L J.

232, 242, Gopal v Kenararn (1867) 7 WR, 35, Ram Huree v
Trihee Ram (1871) 15 W R , 442, Balkishen Das v. Ramnarain (1903»)
30 I A., 139, 150, 30 Cal, 738, Jatti v. Banwari Lai (1923) 50 I A ,
192, 4 Lah , 350

(u) (1903) 30 I A , 130, 136, 30 Cal., 725, 734, see also Kuta Bally
V. Kuta Chudappa (1864) 2 Mad H.C., 235, Rusi Mendli v. Sundar
Mendh (1910) 37 Cal, 703.

(v) Venkatareddi v Kuppareddi (1918) M.W.N , 780 (The re-
ference in this case to 30 Cal, 231 seems to be a mistake). See also
the observations of Venkatasubba Rao J in Baba alias Govinddoss v
Gokuldoss (1928) 55 MLJ., 132, 141-2.

PARAS. 469470.] RESULT OF REUNION.

579

§ 469. Reunion can be effected either by an oral agree- How effected,
ment between the parties after the partition or by their subse-
quent conduct (w). Where the agreement to reunite is in
writing, it would requiie registration where it affects immov-
able property of the requisite value (^r) . A reunion is of
very rare occurrence. It must be strictly proved as any other
disputed fact is proved (y).

§ 470. While the effect of a reunion is to restore the un- Effect of
divided status of the reuniting coparceners, it is not quite clear reunion,
whether in all its incidents, the new coparcenary is exactly
of the same kind as the normal coparcenary before its dis-
ruption. One view is that where there has been a reunion,
the reunited members are not for all purposes coparceners
in the strictest sense as in an ordinary undivided family, but
that on the death of one of them his share devolves in accord-
ance with special rules of succession (z) . The other view is that
the reunion restores the joint family to its former status
and position so that it does not in any essential particular
differ from the status of the family before partition (a). The
latter certainly is a simple and intelligible rule and is to
be preferred to the obscure and discrepant rules on the
subject as stated by the writers. In Abhai Churn Janav v,

Mangal Janaib), a Dayabhaga case, the Calcutta High Court
held that where there has been a reunion between persons
expressly mentioned in the text of Brihaspati and where their
descendants continue to be members of a reunited Hindu

(w) Balahux v. Rakhmabai (1903) 30 I. A., 130, 30 Cal., 725; Jatti

V. Banwari Lai (1923) 50 I. A., 192, 4 Lah., 350; Palani v. Muthu

V enkatachala (1925) 52 LA., 83, 48 Mad., 254; Jag Prasad Rai v.
Mt. Singan (1925) 49 M.LJ., 162 P.C.; Bhima Rout v. Dasarathi
(1913) 40 Cal., 323; Gourishankar v. Kesheb Deo A.I.R. 1929 All., 148.

(re) Mahalakshmamma v. Suryanarayana (1928) 51 Mad., 977.

(y) Balabux v. Rakhmabai (1903) 30 I.A., 130, 30 Cal., 725; Jatti

V. Banwari Lai (1923) 50 I.A , 192, 4 Lah., 350; Palani v. Muthu-

venkatachala (1925) 52 LA., 83, 48 Mad., 254, 258; (1925) 49 MLJ,
162 P.C. supra; Babu v. Official Assignee, Madras (1934) 61 LA., 257,
57 Mad., 931 affirming the judgment of Venkatasubba Rao, J., in (1928)
55 M.L.J., 132 supra, Manickam Chetty v. Kamalam (1937) 1 M.L.J.,
95.

(z) Ramaswami v. Venkatesam (1892) 16 Mad., 440.

{a) Abhai Churn Janav v. Mangal Jana (1892) 19 Cal., 634,
Knstraya v. V enkataramiah (1903) 19 M.L.J., 723 F.B.; Samudrala
Narasimha v. Samudrala Venkata (1909) 33 Mad., 165, Kristniah v.
Guruviah (1921) 41 M L.J., 503; Babu v. Gokuldoss (1928) 55 M.LJ.,
132 ; Nana Ogha v. Parbhu Datgha A I.R. 1924 Pat., 647, 75 I.C., 508 ;
Jatti V. Banioarilal (1923) 50 I. A., 192, 4 Lah., 350; Jasoda v. Sheo
Pershad (1889) 17 Cal., 33 (overruled by the P.C. on another point) ;
Jag Prasad Rai v. Mt, Singan (1925) 49 M.L.J., 162 P.C.t see also
Prankisen Paul v. Mothooramohun (1865) 10 M.I.A., 403, 406;
Narayana Sah v Sankar Sah (1933) 53 Mad, 1, 11.

(b) (1892) 19 Cal., 634 supra.

580

PARTITION.

[chap. XI,

fainii), the law of inheiitance applicable to the latter is the
same as iii the case of the death of any of those between
whom the leunion took place. They also observed that it
would be anomalous if the law of succession as between the
descendants of the reunited members were diffeient from the
law as between the reunited members themselves. This
piinciple was followed in the Mitakshara jurisdiction by a
Full Bench of the Madras High Court in Kristraya v.
V enkataramiah where it was held that reunited members of
a Hindu family are not tenants-in-commori but aie copar-
ceners with rights of suivivoiship inter se and that their
sons must be deemed to be copaiceneis with them (c). This
view was followed by the same Court in Samudrala
Narasimha v. Samudrala P enkata which held that succession
in d leunited Mitakshara famil) goes b) survivorship (d).
In that case on the death of one of two bi others who had
reunited, his son was held to be leunited with his uncle so that
on the death of the former, his widow was excluded by the
uncle.

In Raniaswarni v. Venkatesain, two brothers, being sons
of diffeient mothers reunited, one of them adopted a son.
The adopted son, aftei the death of his father and uncle,
besides succeeding to his father’s shaie, sued to lecovei his
uncle’s shaie on the ground that he was the only surviving
member of the copaicenai\ He was held entitled only to
one-thiid of it as against his uni le's two divided brothers of
full blood ie). The decision was lested on the Mitakshaia
II, ix, 3, 7. The succession of separated uterine brother^;,
not reunited, was regarded as an exception cngialted on the
oidinaiy rule that a suiviving leuniled member takes the
property of one deceased while in reunion with him. The
obseivations in some of the cases!/) pioceed upon the
assumption that the sons, though not pailies to the original
paitition, can reunite with the oiiginal copaiceners — an
assumption which cannot hold good after the Pi ivy Council
decision 111 Kant Narairi Chaud/iury v. Pan Kuei fg). but
theii informalydocs not affect the coiicclness of tlic conclusion.

On principle, however, the male issue of the icuniting co-
parceners will also be coparceners with them as well as

(c) (1909) 19 M.LJ., 723 F.B.

id) (1910) 33 Mad, 165.

(e) (1892) 16 Mad., 440 See this case explained in (1910) 33
Mad., 165 supra.

if) For instance in (1909) 19 M.L.J., 723 F.B. and (1910) 33
Mad., 165 supra.

ig) (193,4) 62 I.A., 16, 14 Pat., 268.

PARA. 470.]

RESUIvT OF REUNION.

581

amongst themselves inter $e. There is no need for a theory of
reunion at each step in the descent (h ) ; for, the restriction as
to the persons who can validly reunite relates only to the time
when they agree to reunite and is not a continuing restriction
so as to prevent their progeny from being members of the
reunited coparcenary. Conclusive support for this view is

to be found in the Mitakshara (i)*

Certain special rules of inheritance to the property of
reunited coparceners in default of male issue will lie dis-
cussed in the chapters relating to inheritance (j).

ih) (1892) 19 Cal, 634 supra; (1928) 55 M.L.J., 132 supra

ii) Mit.y II, ix, 4: “The share or allotment of such a reunited
parcener deceased, must be <ielivered by the surviving reunited
parcener, to a son subsequently born, in the case where the widow’s
pregnancy was unknown at the time of the distribution. Or, on failure
of male issue, he and not the widow, nor any other heirs, shall take
the inheritance’'.

(;) See post §§558, 587

CHAPTER \I1.

Early rules
meagre.

SUCCESSION UNDER JMIl AKSHARA LAW.
SECTION 1.

PRINCIPLES OF SUCCESSION

S 47 J. The rules of inheritance given by the ancient
lawgivers are incagie. The reason probably was that property
was held invaiiably l)v the members of a joint family and
separate acquisitions were inconsiderable: there was no
necessity to lav down detailed rules of inheritance. Parti-
tions must have been infrequent and where they occurred they
would only bung new joint families into existence. On the
oeaiii of ^ member in a copaicenaiy, his male issue took his
interest. is usual to speak of it as passing

by survivorship entiic coparienary. according to the

stiicter conception, the ^ copaicener, on his death,

went as unobsliuctcd ^is son, giandson and

great-grandson It was only died without male issue,

it passed by survivorship to the other‘‘‘^®P‘*^‘^^^^’"®' germs

of inheritaiioe aie theieforc to be fou:'’*^
coparcenary which consisted of oneself an'e^
and great-grandson. On the death of a man divided

from his toparcencis. his son, grandson and
v\eie also the peisons entitled to his estate

In default of male issue, and the appointed daugv^^^^
her son, the ncaier kinsmen and then the remoter
the gotra or family succeeded Succession was at fir
lined to agnates or sagotras onl\ The gotra or
consisted of all those dc'seended from one common stc , ^
the male line and such family union or connection was^
source of the entire class from which a succession of hens
derived (a) A text of Gautama makes the succession go
only to the membeis of an ordinary agnatic family or gotn’c
but also to the members of a rishi gotra ib)

(a) Bhya Ram v Bhyah Ugur Singh (1870) 13 M.I A., 373, 391,
Harihar Pratap v Bajrang Bahadur AIR. 1937 P.C., 242, 41 C.W N ,
2 MLJ, 711, explaining Jadunath Kuar v. Bisheshar
Baksh Smgh (1932) 59 I A . 173, 36 C W N , 1073, Ratna Mudaliar v.
Krishna Mudaliar (1937) 1 MLJ, 390, 394

21 Cited m Mit., II, 1, 18. Compare Narada,

All, 7,

PARA. 472.]

HEIRS ACCORDING TO SMRITIS.

583

§ 472. The table of succession to the estate of one dying
without male issue as given in the Smritis is as follows: —

Gautama: — sapindas, sagotras, those connected by descent
from the same nshi and the widow (c).

Apastamba. — the nearest sapinda, teacher, pupil, daughter,
or the king (d).

Baudhayana — sapindas (agnates within degrees), sakiil*
vas (agnates beyond three degrees), teacher, pupil or priest,
king (e).

Vasishtha — sapindas, teacher, pupil and the king(/).

Manu, — daughter, daughtei’s son, father, brother, niothei
and grandmother, other sapindas (agnates within 3 degrees',
sakulyas (agnates beyond 3 degrees) , teacher, pupil, Brahmana,
or the king (g).

Vishnu: — vv'idow, daiightei, daughter’s son, father, mother,
brother, brother’s son, bandhu, sakulya, fellow-sludeiiL
Brahmana or the king (h) ,

Yajnavalkya. — wife, ‘and daughters also’, both paients,
brothers, brother’s sons, gofiajas^ bandhu. pupil, fellow-
student ( / ) .

Naiada, — daughteis, sakulyas. bandhavas. castomen, the
king (/).

Bfihaspati. — wife, daughtei, daughter’s son, father, mother,
brothei, brother’s sons, dayadas oi jnatis (sapindas), sakulyas
(samanodakas) , cognates (bandhavas). pupil or learned
Brahmin (A").

(c) Gaul , XXVIII, 21. “Pmdagotrarshisambandah nktham bajeran
stri va anapatyasya" Jha, H.LS, II, 506, Mit.. II, 1, 18, Dr. Buhler’s
rendeiing is ‘sapindas, sagotras, those connected by descent from the
hame rishi and the wife’

(d) Apas, II, 6, 14, 2, 5

(e) Baiidh , 1, 5, 11-13
(/) Vas, XVII, 81-84

ig) Mann, IX, 187, 130, 136, 185, 217, 188, 189
{h) Vishnu, XVII, 4-13, XV, 47.

(0 Yajn., II, 135, 136; Mit., II, 1, 2
(;) Nar, XIII, 50, 51

(A) Bnh., XXV, 55-66. Jnati in this text means sapinda and
sakulya means samanodaka according to the Smritichandrika, Vyava-
h^akanda, 697 (Mysore edn.), XI, iv, 19 (dayadas), Jha, H.LS., II,
506. Bfihaspati (XXV, 66) mentions last, ‘the property goes to the
daughter’s son’. See also Smritichandrika, XI, v, 13.

Heirs accord-
ing to the
Smritis.

584

SUCCESSION UNDER MITAKSIIARA LAW. [CHAP. XII,

Early

terminology
for heir**

Original
meaning of
sapinda

Katyayana: — widow, daughters, father, mother, brother,
brother’s sons (Z).

Detala , — uterine brothers, daughter, father, step-brothers,
mother, wife, in due order, co-resident sakulyas (m).

In the above summary, the heirs mentioned by Manu and
Bnhaspati are given, but their order is, in part, obscure.

§ 473. The heirs were known as dayadas or receivers of
inheritance, a term frequently used to signify any successor
other than a son (n) Those referred to as sakulyas, sagotras
or gotrajas were all agnates (o). These terms were expressive
of kinship only and referred to a descent in the male line
from a common ancestor or a patriarch who was supposed to
be the founder of the familv. The term ‘sapinda’ has how^-
ever a different histoiy. While kinship in the family (gotra)
con fen ed upon a man, where he was the nearest, the light
lo lake the wealth of another, it also imposed upon him
obligations as a member of the gotra in respect of funeral
rites, impurity and marriage (/>).

§ 474. Sapindas meant only those sagotras or agnates
connected by pinda offerings The Smntis leave no loom
for doubt on the point The text of Gautama refers to hens
as connected by pinda or gotra without using the expression

(/) Kalvayana, cited in Mit . IT, 1, 6, Jha, HLS, IT, 457

(rn) Jha, HLS, H, 450, aNo cited in Apararka tran«ilat(*(I in 21
M L J (Journal) 314 5, according to Kaulilyds Artha'^a^tra, the heirs
arc sons and daiiglilers, father, hiolher, brother’s sons, sapindas
(nearest agnates), kiilvas (remoter agnates) Arthas , III, 5, 9-11
(Jolly’s edn ) , Sliamasasiri, 197, 201, Jha, TILS, II, 452 The rule
in the Arthasastra (IH, ii, 32 (Jolly’s edn ) 1 refers to the remarrying
widow losing the propeilv which was given by her former husband
It does not appear lo refer lo any property inherited by her. Dr
Hanapathi Sastri’s comment i« clear, Bk., IT, p 15, Shamasastri, p 188
Dr lha’s translation does not appear to be right Jha, H L.S , II, 595
The Smritisangraha (between the 8th and 10th centuries) gives the
following order of heirs -widow, daughter, mother, father’s mother,
father, full brolheis half-brothers, line of the father, the grandfather's
line, the great-grandfather s line, sapindas of higher degrees, sakulyas,
preceptor, pupil, a fellow-student, a learned brahmin and king, cited
in the Smritichandrika, XI, 4, 24, 26, XI, vi, 8, Jha, HLS, II, 505,
Kane, 241, Parasaramadhaviya, §73

(n) Mit, I, XI, 33 (Setlur’s edn, 710), Manu, IX, 158-160, Brih ,
XXV, 66, Vedic Index I, 353, Tolly, TLL, 267, L & C, 184, Tha,
HLS, II, 254 255

(o) Jolly, TLL, 195

(p) A man by reason of his kinship became not only the dayada,
receiver of inheritance or pailakei of pioperlv, but also a paitakci
of the gotra Baiidh , jha HLS, H, 262 ‘sinkhi and Likhiia, Tha,
II I .S, H, 258, Manu, I\ 112,

PARA. 474.] ORIGINAL MEANING OF SAPINDA.

585

‘sapinda’ (q) . Another text of his as also a text of Baudhayana
treats sapindas of a deceased person as not including his
mother’s sapindas (r).

The explanation of the term ‘sapinda’ as applied to
certain degrees of agnatic kindred is to be found in the code
of funeral rites. At the ordinary sraddha or funeral rite, a
man is bound to offer pindas to his three paternal ancestors.
Apastamba says: “At that rite (sraddha) the manes of one’s
father, grandfather and great-grandfather are the deities to
whom the sacrifice is offered” (s) . On the death of a person,
at the earliest on the twelfth day and at the latest, one year
after it, the unifying rite called the sapindikarana-sraddhai^
performed (0* It effects the inclusion of the person who is
dead among the fellowship of the manes or the ancestors of
the family. As the Mitakshara puts it, by that ceremony,
the deceased ceases to be a shade or ghost (a preta) and
becomes a pitr tmanes) (m) . Thereafter, at a parvana sraddha,
a man offers three undivided pindas to his three immediate
paternal ancestors, i.e., father, grandfather and great-grand-
father (t;). The wipings or lepa, in other words, the
fragments of the cakes which remain on his hand and are
wiped off with kusa grass, are offered to the three paternal
ancestors next above those who receive the cake, that is, the
persons who stand to him in the fourth, fifth and sixth
degrees of ascent iw) , A text of Matsyapurana which is

(</) Caut , XXVTTT, 21

ir) Gaiit.. XV, 13; XIV, 20; Baudh . I, v, 11, 27 (refers to bandhus
or cognates as persons who are not the dead man’s sapindas in pre-
‘•rrdjing impurity for them)

(s) Apas., II, 7, 16, 3.

(/) Mit. citing Asvalayana, Vidyarnava’s trans., 347-348; Vishnu
gives it as thirteenth day; Vishnu, XXI, 19; Brih., XXV, 101.

(u) Mit. on Yajn , I, 254 (Vidyarnava’s trans, 339, 340);
^Snpmdikarana is the reception of a dead person into the commiinitv
of pinda offerings with the other manes’. Sankhayana Crihyasntra, IV,
3, 1 (SB.E., Vol. XXIX, p. 109). Vishnu refers to this ceremony
thus* “He for whom the ceremony of investing him with the relation-
ship of sapinda is performed” (Vishnu, XXT, 23) . This unification
brought about by kneading the pinda of the deceased person together
with the three pindas of the three deceased ancestors (Vishnu XXI, 17).
For a clear exposition of the sapindikarana rite, see note by Mr.
Gharpure in his translation of V. Mayukha, pp. 83-84.

(v) Paraskara, III, X, 50 (S.B.E., Vol. XXX, 359) ; Gobhila, IV,
3, 8, 9, 24-27 (S.B E., Vol. XXX, 107-110); Hiranyakesin, II, 5, 11
(S.B.E , Vol. XXX, 236) , Sarvadhikhari, 2nd ed., 24.

(w) Manu, III, 215-216; Medhatithi (Manu, III, 216) says: “They
were known as partakers of lepa or wipings”; Vishnu, LXXIII, 17*22;
Arlhas, TIT, 5, Shamasastri, 197; only the first three ancestors were
named and the others were not named, Manu, III, 284. This exten-

In funeral
rites.

586

SUCCESSION UNDER MITAKSHARA LAW. f CHAP. XII,

‘Sapinda’ in
succession.

Baudhayana.

frequently cited in the books sa)s, ‘‘Those beginning with the
fourth generation are the recipients of lepa and those begin-
ning with the father are the recipients of pinda, the giver
of the pinda is the seventh and thus sapinda relationship
extends over seven generations” (a;) It is clear therefore
that the term ‘sapinda’ denoted seven degress of kindred
inclusive of the man himself both in ascent and
in descent for purposes of funeral iites, impurity
and marriage (y) Baudhayana says in connection with
impuritv “But amongst sapindas, sapinda relationship
extends to seventh person” (z) Similarly, Vasishtha (a) ,
Manu and Vishnu state the same rule for purposes of
impurity, marriage and funeral rites (h) .

55 475 For purposes of succession, however, sapinda-
iihip was (»riginally confined to three degrees of agnati”
kindred in ascent and in descent, the term ‘sapinda’ referring
only to those who weie connected by the undivided oblation
Baudhavana is cpiite explicit* “Moreover, the great-grand-
fathei, the grandfather, the father, oneself, the uteiine brother,
the son by a wife of equal caste, the grandson, and the
great-grandson — these they call sapindas but not the great-
grandson's son, and amongst these, a son and a son's son
together with then fathei are sharers of an undivided

Sion to SIX degrees was probably due to the ancient rules requiring
a man whose father and grandfather were alive or either of them or
whose father and giandfather were dead or whose fathei alone was dead
but whose great-grandfather was alive to offer pindas to those ancestor'^
to whom his father, grandfather and great-grandfather were bound to
offer, thus reaching in one contingency to the fifth in ascent, that is,
to the grandfather of his great grandfather as the receiver of pinda
The sixth however was never reached, for “while his father, grand-
father and great-grandfather are alive, he must offer no sraddha at
all”. Vishnu. LXXV, 1-7, Manu, III, 220-221, Mu, Vidyarnava’s
trans , 342

(r) Matsya Purana, XVIII, 29, cited in the Smntichandnka
Gharpure’s edn., 67, Samskara, Mysore edn , 180, Para&ara Madha-
viyam, Vol I, part If, 59, Madana Parijata, Calcutta edn, 129,
Setlur’s trans, 569, Niinayasindhu, Setlur’s trans., 560, Samskara
Mayukha (Gharpure's edn ), 150, Viramitrodaya, III, i, 11 (Setlur’s
ed), p 392, Dig, II 568, Markandeya Purana, XXXI, 3-5

(r) Gaut, XIV. 13, 1\, 3, 6 \pas., II, 6, 15, 2, II. 5, 11, 16.

(z) Baudh , I, 5, 11, 2

(a) Vas , IV, 17. Dealing with impurity, Vasishtha says
“It has been declared in the Veda that sapinda relationship
extends to the seventh person in the ascending or descending
line” (according to Dr Buhler’s translation) But in the Vedic Index
the term ‘sapinda’ is not dealt with

ib) Manu. V, 60, Vishnu, XXII, 5, Mit. on Yajn , III, 18
explaining Manu’s text (Narahaiayva's trans., 30).

PARA. 475 .] THREE DEGREES FOR SUCCESSION.

587

oblation. The sharers of divided oblations, they call
*sakulyas^ {c) , This division of Baudhayana is only for
purposes of succession; for it is followed immediately by two
sutras providing for descent of property to sapindas
and on failure of them, to sakulyas (d) ; and is pre-
ceded by two sutras defining, for purposes of impurity,
sapinda relationship as extending to seven degrees (e). This
usage is confirmed by such a wholly secular treatise as the
Arthasastra of Kautilya, which repeats the same distinction Arthasastra
of undivided oblations up to the fourth generation and of the
subsequent generations being of divided oblations (/) and
refers to a ‘sapinda’ or a ^kulya as being bound to offer
oblations (g).

(<) Baudh I, V, 11. 9-10 The Viiamitrodaya explains the text
of Baudhayana “'Since a person (when deceased) partakes of tlie
oblations presented to the three paternal ancestors beginning with the
father, by reason of the union of oblations (effected through the
ceremony called **sapindikarana'* ; and since the three descendants in
the male line beginning with the son present oblations to that person
himself; and since he, who, while living offered oblations to an
ancestor in the male line, partakes when dead, of the oblations pre-
sented to that ancestoi, by reason of the union of oblations: thus the
middlemost person who while living offered oblations to his ancestors,
and when dead partakes of the oblations presented to them, becomes
the object to whom oblations are presented by others that are living,
and partakes with these latter while they are dead, of oblations pre-
sented (to him) by the ddughter’s son and the like. Therefore those
to whom that peison offers oblations, as well as those who partake
of the oblations presented by him, as also those who present oblation^
to him, are, as partaking of undivided oblations consisting of the
pmda, the sapindas of that person by reason of connection through
the same pmda To an ancestor who is fifth in ascent, the middlemost
person who is fifth in descent, does not present oblations, nor does he
partake of oblations presented to that ancestor, similarly the fifth
descendant does not confer oblations on the middlemost person, nor
partakes of oblations piesenlcd to him (Consequently the three
ancestors beginning with the great-great-grandfather and the three
descendants beginning with the great-great-grandson, that is, the three
beginning with the fifth on both sides, who partake of divided obla-
tions, and are not connected through the same pmda, are by the sage
called sakulyas inasmuch as they are only connected through the kiiln
or family” (111, 1, 11, Setlur’s edn , 391-2) Cf , Dayabhaga, XI, 1, 38.
Dayatattvd , XI, 7. Dr. Jha gives a different translation of the last part of
Baudhayana’s text which seems erroneous. “These undivided coparcener'^,
they call sapindash, ledivided coparceners, they call sakulyas" Jha

H L S., II, 510. See Daya. Bh., XI, 1, 37 for Mr. Colebrooke’s trans
which accords with Dr Buhler’s.

id) Baudh., I, V 11, 11-12.

(c) Baudh., I, V, 11, 1-2.

(/) Arthas., Ill, 5, 3-5 (Jolly’s edn.) ; Shamasastri, 197. Dr

Shamasastri’s translation of pmda as line is an error.

ig) Arthas., Ill, 6, 31 (Jolly’s edn.) ; Shamasastri, 201. Dr.

Shamasastri’s translation of kulya as cognate is not correct. Dr. Gang-
pathi Sastri’s gloss is to be preferred. Bk., II, p. 39.

588

Manu.

^aknlya.

Bandhu

meaning

agnates.

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

Citing Baudhayana’s definition, Chandesvara in his Vivada
Ratnakara and Jimutavahana in his Dayabhaga say that it
refers to inheritance and not to pollution on births and deaths
of relations and the like (h ) . The former adds that as regards
pollution, those that are of the same pinda are sapindas even
when they partake of divided oblations; but for purposes of
succession, those that partake of divided oblations are not
sapindas. The text of Manu which gives a limited meaning
to the word ‘sapinda’ for purposes of succession as dis-
tinguished from impurity, marriage and so foith is decisive on
the matter: “To three ancestors, water must be offeied, to
three the funeral cake is given, the fourth descendant is
the giver of these oblations, the fifth has no connection with
them” (r). Following this definition. Manu savs in 1\. 187.
“Always to that lelative within three degrees who is nearc^it
to the deceased sapinda, the estate shall belong, afterwards
a sakiilya shall be the heir, then the spiritual teacher or the
pupil”. As Dr. Buhler points out, since verse 186 limits
sapinda relationship to three degrees, veise 187 refers only to
sapindas within three degrees and sakulyas must be taken in
the wider sense as denoting remoter members of the family.
There can be no doubt that Jimutavahana undei stood Manu
and Baudhayana aright and accordingly he limits the teim
sapinda to three degrees, though for reasons of his own, he
includes cognates also under that term (;) The Viiamitro-
daya referring to the above texts of Manu and Baudhavana
says. “This sapinda and sakulya lelationship is declared with
reference to succession, as it is mentioned in the chapter
relating to that subject But with reference to impurity,
marriage, etc , those also that partake of the divided
oblations {i e , sakulyas) are considered as sapinda^ by reason
of the text of the Matsya Purana” (A:)

§ 176 It is somewhat significant that the Vishnusmriti
uses, in stating the order of succession, the term ‘bandhu,’ a
tcim of mere relationship to denote near sapindas and the
term ^sakulya to denote the remoter sagotia^ (1) ; this is the

(h) Vivadaralnakara, XXXIV, 18 (page 86) Sastri Sarkar’s
translation of pinda as body and reference to divided coparceners
appear to be inconsistent with the distindion between inheritance and
polhition which Chan<lesvara hini'^elf point*:! out Dayabhaga, XT, i, 40.

(/) Manu, IX, 186

(/) Dayabhaga, XI, 6, 19

(A) Viramit , III, 1, 11 (Sethir, II, 392),

(I) Vishnu, XVII, 10, 11,

PAUA. 476.J bEVEN DEGREES FOR SUCCESSION.

589

view expressed by the Vi\ada Ratnakara (14th century), the
Vivada Chinlainani (loth century), and the Viiamitrodaya
(1610-1640 A.D.) (m). As stated by the Privy Council,
on the authority of the Viramitrodaya, m Ramchandta
Martand v. Vinayek, the earlier Smritis appear sometimes to
have used the term bandhu to mean only a sapinda
(agnate) (n) , Yajnavalkya however confines the term
'’bandhu’ in the principal text to cognates and uses the compre-
hensive teim got raja to denote both the sapindas and sakiilyas
of Baudhayana and Manu (o). Narada lefers by the terms
sakulyai^ and bandhavas to agnates and cognates respect-
ively ip), Brihaspati uses dayadas or jnatis or sapindas as
denoting the fiist six degrees of sagotras, sakulyas as denot-
ing samanodakas and bandhavas as denoting cognates (r/).

By the time of Visvarupa, the woid sapinda came to Extension
include, for purposes of succession also, seven degrees of
agnatic kindred including the person concerned; foi, degrecb.
Visvaiupa, commenting on Yajii., II, 135, has adopted
for purposes of succession, the nomenclature which Manu
gives foi pui poses of impurity, of sapindas and sama-
nodakas. He also understood the term bandhu m the text
of Yajnavalkya as meaning the maternal uncle and the
likc(/). He does not however depart fiom the earlier
meaning of sapmdaship as connection through pirida offer-
ings. The anonymous author of the Smritisangraha who
wrote long befoie the Mitakshara employed the term sapinda
for pui poses of inheritance to denote seven degrees of
agnatic kindred ( 5 ).

Medhatithi, commenting on Manu, V, 60, jilacrs the Mcdlialithi.
inlerpi elation of ‘sapinda’ beyond all doubt. He says that
sapindas arc persons boin ol the same family upto the person
in the seventh giade. Accoiding to him, as the offering of
the pinda is a single act upon which and in connection with
which the title sapinda becomes applicable, all descendants
iiplo the seventh grade of the gieal-giandfather of one’s

(m) Vivaduratiidkara, XXXI V, 15 (page 86) ; Vivadachintamani,
288, Viiainit, Setlur’b ed , 381, 424.

(n) (1914) 41 I.A., 290, 305, 42 Cal., 382.

(c) Yajn., 11, 135-136. But in 11, 144, it rcfcis to kinsmen gener-
ally.

(p) Nar., XIII, 51.

(<7) Brih., XXV, 59, 62; Smritichandrika, Vyavahara, 697 (Mysore
edn.). See §472, note (k),

(r) Vi&varupa, 252 (Triv. edn.).

(a) Jha, ll.L.b., 505; Snirilichandrikd, XI, v, 6; For Dhares-
vara’s opinion see Smritibhaiulrika, XI, 10. bee ante § 18.

590

NEW ETYMOLOGY OF SAPINDA

[chap. XU,

Sapinda
newly defined
by

Vijnanesvara.

gieat-grandfalher are his sapindas. Similarly the descend-
ing line of one’s descendant^ and the descendants of his
father, grandfather and the lest aie his sapindas He adds
that the degiees are to be counted fiorn that person from
whom the two lines bifurcate H) Kulluka, who wTote after
the Mitakshara is equally definite, according to him, sapindas
mean only agnates and he explains that the maternal
grandfather and the rest, though connected by pinda. are
not sapindas (a).

It IS therefoic absolutely clear that the term sapinda as
used in the Smiitis and by the commentators before Vijna-
nesvaia meant only those (onneded by funeral oblations {v) .
Vijnanesvara’s definition of sapindas as those connected by
particles of the same body was apparenth unknown to any
previous lawgiver He cites no Smriti m support of his
view, but only the Vedic texts on the theoiy of heredity,
which do not mention *pinda’ or ‘sapinda’ at all {iv). As
Nilakantha says “Vijnanesvara abandoned the theory of
connection through the rice-ball oflenng and accepted the
theory of tiansmission of constituent atoms” ix)

Following Visvaiupa, Vijnanesvaia understood by the
term gotrajas, sapindas and samanodakas, the former denot-
ing agnates within seven degrees; and the latter,
agnates from the eighth to the fourteenth degree
The term samanodaka meant liteially those connected by
libations of water and was originally employed to denote
the remotei degrees of kindred in connection with impurity
and funeral rites (y) In the light of Vijnanesvara’s

it) Jha, Medhatithi Bhashya, Vol. Ill part I, 73-74

(/i) Kulluka on Mann, V, 60

iv) The meaning of the term 'pinda\ according to Vedic Index, I,
S2'1 IS ‘a hall of flour offered to the mane's cbpecially on the evening
of tht new moon’ Foi the Mitakshara expo«;ition, bee Vidyarnava’s
trails , 96-98 and ante § 108

iw) Jolly, TL.L, 169-171

(jc) Samskara Mayukha (Gharpure’s edn , p 50), Lallubhoy v.
Mankuvarbai (1878) 2 Bom., 388, 426.

(y) The term ‘samanodaka’ was however too refractory to adapt
Itself to the new etymology Medhatithi on Manu, V, 60, Jha, Medha-
tiihi Bhashya, Vol III, pt , 1, 73-74, compare Mit , on Yajn, III, 3
(Naraharayya’s trans, 7). Visvarupa divides gotrajas as sapindas,
samanodakas and members of the same rishigotra and apparently
places them befoie bandhus (Triv ed , 252) Jimutavahana (XI, vi,
25) places the persons bearing the same family name igotra ) after
the preceptor, pupil and fellowstudent, following the early text of
Gautama. “Persons allied by funeral oblations, family name and
patriarchal descent, shall share the heritage”, (xxviii, 21).

PARAS. 476478.] SUCCESSION UNDER MITAKSHARA LAW.

591

exposition of sapinda, as connected by particles of the same
body, the term samanodaka can only be understood as
meaning the eighth to the fouiteenth degrees of kindred
and not as having any leligious import (z).

§ 477 The term ‘bandhu’ or ‘bandhava’ meant relations Bandhu.
in general and included both agnates and cognates though
It was sometimes confined to agnates in some of the Smriti
texts relating to succession and gotra kinship, as for
instance in the Vishnusmriti and in some of the verses
in the Manusmriti (a). But it appears to have referred only
to cognates in the texts relating to funeral rites, impurity and
marriage. Manu lays down that on the death of a maternal
uncle {matula) and on the death of the maternal relatives
(handhavas) impurity shall be observed for a period of one
night together with the preceding and the following days (6).

The Mitakshara explains that the term ‘bandhavas’ in the
above text of. Manu means almabandhuSy pitrubandhus and
tnatrubandhus (6^).

S 478. The daughter’s son along with his mother was Daughter’s
recognised by Manu as an heir on the analogy of the
appointed daughter and her son. “Through that son whom
d daughter, either not appointed or appointed, may bear to
a husband of equal caste, his maternal grandfather has a
son’s son; he shall present the funeral cake and take the
estate” (c). The gloss of Govindaraja is that the verse
allows the son of a daughter not appointed to inherit his
maternal grandfather’s estate, an opinion shared by another
early commentator Sarvajna Narayana. No doubt the

(z) Atmaram Abimanji v Bajirao QQJS) 62 I A , 139, 142, AIR
1935 P C., 57

(«) Vishnu, XVII, 10, Manu, IX, 158 160, V, 58, XI, 172, 182.
Medhalitlu and Kulluka, commenting on Manu, V, 58 and IX, 158-160
point out that the term ^bandhu* means agnates, partakers of gotra
(gotrabhajah) Jha, H L S , 11, 254-255. So too, the Mitakshara in
dealing with Manu’s verses in 1. xi, 30-31 says that the term means
sapmdas and samanodakas. See also the texts of Harita and Sankha
Likhita, Jha, H.L.S., II, 258; Jolly, L. & C., 184.

(6) Manu, V, 81; Gaut., XIV, 20, Apastamba, II, 5, 11, 16
Y onisambandha, a relation by marriage, includes, according to Hara-
datta, maternal grandfather, maternal aunt's sons and their sons, the
fathers of wives and the rest. According to Dr. Buhler it includes all
bhinnagotra sapmdas, bandhu s or bandhavas of the later terminology.
Baudh., I, V, 11, 27 (referring to all persons who are not sapmdas
including bandhu s or bandhavas) The Arthasastra of Kaiitilya
differentiates between matrubandhus and sagotras Arthas., Ill, 6, 33
(Jolly’s edn.).

(6^) Mit., on Yajn., Ill, 24, (Setlur edn., 1169); Naraharayya’s
trans., 56.

(c) Manu, IX, 136.

592

COGNATES RECOGNISED AS HEIRS. [CIIAP. Xll,

Ollier

cognates.

comments ol Meclhatithi and Kulluka {d) diflcr from those
of Govindaraja but the text itself is fairly clear and the
son of an appointed daughter had already been dealt with
by Manu in the preceding verses IX, 131-135 The Milak-
shara, the Dayabhaga, the Parasara Madhaviya and the
Viramitrodaya expressly rest the right of the daughtei’s son
to inheritance on the above text of Manu as well as a text ol
Vishnu (ej. The text of Vishnu is. ‘Tf a man lea\es neither
a son, nor a son’s son, nor issue, the daughter’s son shall
take the wealth. For, in regard to the light to peiformance
of obsequies of aiucstors, son’s sons and daughlei’s sons are
admitted as rightfully entitled” (/J The daughtei’s son is
not expressly mentioned in the list of hens by Yajnavalkya.
The Milakshara says that by the impoit of the particle ‘also’,
the daughter’s son succeeds to the estate 3 here (an be no
doubt about this tradition; for, Manu, Vishnu and Brihaspati
clearly recognise the daughter’s son though Biihaspati seems
uiiceitain about his place (g).

§ 479. Cognates other than the daughlei s son do not
however appear to have been recognised as heirs till the
time of Yajnavalkya (h) Owing to the stronger claims ol
the agnatic family in the earlier times and the widei ambit
of the gotra kinship which, accoiding to Manu (i), was co-
extensive with the tradition ol a common oiigin and a
common family name, cognates could have no elfective place
and were theicfore probably not lecognised as hens. No
reliable data as to when exactly the bandhus were inlioduccd
into the scheme of inheritance are available, but it is

id) Visvarupa underblaiids by ‘daiiglilerb’ only the appointed
(Jdughter’b (Trivandriiin cd., 251) Xccordinji ihe Davabliagd, Visva-
mpa iiienhuns the daughter’s son ])d>a Bli , \l, ii. 29

(e) Mil, n, 2, 5, 6, Daya Bli , XI, ii Madhaviya (Biiinell) ^37,
Nirarnil., HI, 3 (Sethir’b ed ) 412.

( /) The .Smiilichandrika (\l, 2 15), the Vyavaliaia Mayiiklia (IV,
8, 13), and the Madana Panjala (Calcutta <'dn. 672) rely on the text
of Vishnu cited above Dr Jolly gives a different reading (XV, 47) - -
‘No diffeience is made in this world between llu son of a son and tlic
son of a daughlti, foi even a daughter’s sun works the salvation of a
(‘liildh'ss man just like a son’s son’ Tlu‘ Mithila authority Vivada-
chintamani apparently rests the daughter’s son’s right on the text of
Manu, IX, 132 which is understood by others to refer to the son of
an appointed daughter Jolly, T.L L., 201-202.

ig) Manu, IX, 136, Vishnu, XV, 47, Brih , XXV, 58, 66.

{h) The attempt of some of the later commentators, Sarvajna
Narayana and Raghavanaiida, to include cognates along with samano-
dakas under the term sakulya is anachronistic and opposed to the
preponderance of authurily and to etymology. Jha, 11 L.b , 11, 510.

(t) Mdiiu, V, 60.

PARA. 479. J SUCCESSION UNDER MITAKSHARA LAW.

£93

reasonably certain that Yajnavalkya recognised them as
heirs. In this he was followed by Narada and Brihaspati,

Nearly two centuries before Vijnanesvara, Visvarupa, com-
menting upon the text of Yajnavalkya says that the term
‘bandhu’ refers to the maternal uncle and the rest. When the
need was felt for giving practical recognition to the nearer ties Limitation of
of affection and blood, the remoter kindred or samanodakas samanodaka.
were limited to fourteen degrees on the authority of a text
of Brihat Manu (j) . Vijnanesvara finally established the
cognates’ rights of succession on a clear basis by redefining
the term ‘sapinda’ so as to cover them. He went a step
further in systematizing the rules of succession. Without
naming the author, he quotes a text which divides bandhus
into atmabandhus, pitruhandhus and matruhandhus (k) , The
text itself is ascribed by Madhava to Baudhayana and by
the Madanaparijata to Vriddha Satatapa(Z). It must
evidently have been a well-known classification of bandhus
for the purpose of determining the order of persons com-
petent to perform the obsequies, in default of nearer
kinsmen (m ) . Vijnanesvara adopted the above classification
of bandhus for purposes of succession also. Including
bandhus in his new definition of sapinda and limiting the
relationship to five degrees as laid down by Yajnavalkya,

Vijnanesvara renamed bandhus or bandhavas as bhinnagotra
sapindas (n).

From the above discussion it is plain that (1) agnates were Summary,
preferred to cognates by reason of the preference of the male
over the female line, a preference based upon ancient
standards of propinquity; (2) that the terms ‘sapinda’ and
‘samanodaka’ which were applied to different degrees of
agnatic kindred for purposes of impurity and funeral rites
came to be employed in connection with inheritance also by
reason of their greater precision thus superseding the vaguer
terms like ‘dayada, *sakulya\ *sagotTa% *gotraja% or ^bandhu^ ;

(3) that cognates were recognised as heirs from the time
of Yajnavalkyasmriti and were known as bandhus and (4)
that sapindas of a man came to include his bandhus also who

(/) Mit., II, 5, 6; see Atmaram Ahhimanji v. Baji Rao (1935) 62
LA.. 139, 144, 68 M.LJ., 673, 39 C.W.N., 646.

(A) Mit., II, vi, I.

(/) Burnell’s Dayavibhaga §41; Madana Parijata (Calcutta edn.).

674; Balambhatta on Mit., II, vi, 1 (Setlur’s edn.), 788.

(m) Nimayasindhu quoted in Sarvadhikari, 2nd ed., 95, 89.

(n) Rumchandra Martand v. Vinayak (1914) 41 I.A., 290, 306, 42
CaJ., 384.

40

594

The two
systems of
Inheritance.

Yajnavalkya’s
text on
Inheritance.

TWO SYSTEMS Of INHERITAI^CE. [cHAP. Xtf,

were known from Vijnanesvara’s time as bhinnagotra
sapindas.

§ 480. From the rules contained in the Smritis the
Mitakshara and the Dayabhaga have established two separate
systems of inheritance. While there is agreement between the
two on many points, there is a remarkable divergence of
opinion on others. There are two fundamental differences
between the two systems. One relates to the ruling canon in
determining the order of succession: in the Mitakshara, it is
propinquity; in the Dayabhaga, it is religious efficacy. Another
radical distinction is that there is only one course of
succession in the Dayabhaga whether the family is divided
o) undivided and whether the property is ancestral or self-
acquired. In the Mitakshara, propeity which is joint will
follow one, and property which is separate will follow
another, course of succession (o). The former is based on
right by birth and unobstructed inheritance and the latter is
termed obstructed inheritance.

The reason for the Mitakshara giving no rules of inherit-
ance as regards the interest of a person when he dies undivided
IS clear enough. The Viramitrodaya points out that when
a man dies unseparated, he has no specific share at all which
can be taken by his heir (p ) .

Ji 481. The text of Yajnavalkya is the foundation of the
whole law of inheritance in the Mitakshara jurisdictions. It
runs as follows- — “The wife, the daughters also, both parents,
brothers and likewise their sons, gotrajas (agnates),
bandhus (cognates), a pupil and a fellow-student. Of
these, on failure of the preceding, the next follow-
ing is heir to the estate of one who has departed
for heaven, leaving no putra. This will extend to

all (males whether or not belonging to the four)

(o) Chowdhury Chintamun v. Mt, Nowlukho Kunwari (1875) 2
I.A., 263, 1 Cal., 153.

(p) Dr. Jolly queries the opinion of Vijnanesvara on the matter,
namely, that the text of Yajnavalkya refers only to the estate of
one separated, T.L.L , 197-198. Criticising Jimutavahana, the Vira-
mitrodaya states the true legal principle* “Since when the husband
dies unseparated, he had no specific share at all, then what will the
wife take? And if reunited, then although his share had been specified,
it was lost by reason of the accrual of a common right over again.
Nor can it be argued that there is certainly his undefined share
although It 18 the subject of a common right. For although this be
admitted, still on the death of one by whose relation the right became
common, the succession of him alone whose right subsists is proper,
but not the supposition of the accrual of another’s right”. Viramit.,
Ill, 1, 13 (Setlur’s ed.), p. 398.

1*ARA. 481.] SUCCESSION UNDER MltAKSllARA LAW.

595

classes” ( 9 ). It will be observed that this applies only to
cases where a man dies leaving no male issue (r). Though
it is usual to speak of male issue taking as heirs a man’s
property, it is not strictly correct; for, where a man dies
leaving a son, grandson and great-grandson, the inheritance
as to them is unobstructed whether it is the ancestral pro-
perty or the separate property of the father. In both cases,
they take it by reason of their right by birth. Where it is
ancestral, their right is equal and effective even during the
father’s lifetime; where it is not ancestral, it is an unequal 01
a subordinate right but is effective for purposes of succession
in the absence of a disposition by the father. In other words,
they take strictly speaking, in all cases, by survivorship ( 5 ).
Accordingly the text of Yajnavalkya confines inheritance to
the estate of one who leaves no male issue. The Mitakshara
law of inheritance therefore applies exclusively to property
which was hel(J in absolute severalty by its last owner

Applies only
to separate
property

Such property will include (1) self -acquisitions of the
last male owner; ( 2 ) property inherited by him from his
collaterals, mother or maternal grandfather (w) ; (3) property
which was allotted to him for his share at a partition with
his coparceners and (4) property which vested in him
exclusively as the last surviving coparcener (r).

The text of Yajnavalkya is interpreted by the Mitakshara
as applying to the whole estate of a man who,
being separated from his <*oheirs and not being reunited
with them subsequently, dies without leaving any male issue.
The Mitakshara lays down no rules of inheiitance as regards
the separate property of one who dies as an undivided member
of a family. But it was finally settled by the Judicial Com-

(g) Yajn., 11, 135-136; Mandlik, 220-222; Mil, II, 1, 2.

(r) The word 'putra stands for a son, grandson and great-grandson.'
Viramit. (Setlnr, II, 390). Balambhatta (Setlur’s edn., 778);
Buddha Singh v. Laltu Singh (1915) 42 I.A., 208, 37 All., 604.

( 5 ) Venkayainma v. V enkatramanayamma (1902) 29 I.A., 156,

165, 25 Mad., 678, Murtuza Husain Khan v. Md, Yasin Ah Khan
(1916) 43 LA., 269, 281, 38 All., 552; Venkateswara Pattar v. Mankay-
ammal (1935) 69 M.L.J., 410, 416. See ante §§269, 271.

(f) Now under the Act the widow gets the share of a son even
when a man dies leaving male issue.

ill) Except where he is one of two undivided brothers taking the
property of a maternal grandfather and holding it along with other
coparcenary property Venkayamma v. V enkatramanayamma (1902)
29 I.A., 156, 25 Mad., 678. See §537. A father or giandfathei takes
his son’s -or grandson’s propel ty as obstructed heritage.

(v) As to what is separate property, see ante §285,

596

lUGHT OF REPftESENTATlON.

tcHAP. Xll,

Shivaganga
case on its
scope.

Male heir
only, stock of
descent.

Right of
representation.

mittee in the Shivaganga case that the course of succession
stated in the Mitakshara should, on principle, be extended
to the separate property of a man when he dies leaving no
male issue. According to the Mitakshara law therefore, there
need not be unity of heirship. The law of succession follows
the nature of the property and of the interest in it and the
course of succession would not be the same for the family
and the separate estate (w),

§ 482. The heir of the last male owner is the person
who is entitled to the property, whether he takes it at once,
or after the interposition of another estate (x). If the next
heir to the property of a male is himself a male, then he
becomes the head of the family, and holds the property either
in severalty or in coparcenary as the case may be. At his
death the devolution of the property is traced from him. But
if the property of a male descends to a female^ she does not,
except in Bombay, become a fresh stock of descent. At her
death it passes not to her heirs, but to the heirs of the last
male holder (y). And if that heir is also a female, at her
death, it reverts again to the heir of the same male, until
it ultimately falls upon a male who can himself become the
starting point for a fresh line of inheritance.

§ 483. The distinction between obstructed and unob-
structed heritage is that while in the former, the nearer
excludes the more remote, in the latter, the doctrine of
representation excludes this rule of preference, for instance,
the son of a predeceased son takes along with his uncles (z).
This doctrine applies equally to coparcenary property and to
the separate property of the father (o). Except in the case
of sons, grandsons and great-grandsons, the right of repre-
sentation does not apply and Manu’s rule of proximity alone

(m;) Katama Nachiar v. Raja of Shivaganga (1864) 9 M.I.A., 539,
607-610, Chowdhry Chintamani v. Mt. Nowlukho Konwan (1875) 2
I.A., 263, 1 C&U 153.

{x) “The rule of Hindu law is that m the case of inheritance, the
person to succeed must be the heir of the last full owner,” Mt. Bhoohiin
Moyee v. Ramkishore (1865) 10 M.I.A., 279, 311, a Dayabhaga case.
The rule is the same in both the systems.

(y) Moniram Kolita v Kern Kolitani (1880) 7 LA,, 115, 5 Cal.,
776, 789, Lakshmi Ammal v. Anantharama [1937] Mad., 948 F.B.

(z) Muttu Vaduganatha Thevar v Periasami (1893) 16 Mad., 11,
15, affirmed by the Privy Council m (1896) 23 I.A., 128, 19 Mad., 451.
See ante § 421 , post § 526 As to the Dayabhaga rule, see D K.S., I,
1, 3-4

(a) Viramitrodaya. II, i, 23-a, Setlur’s ed., II, 341-3, Marudayi v
Doraisami (1907 ) 30 Mad., 348; Gangadhnr v. Ibrahim (1923) 47
Bom., 556.

VARAS. 483-484.] succession never in abeyance.

597

will apply (5) . This doctrine involves the further consequence
that where there are several grandsons by different sons, they
take per stirpes and not per capita (c) . All the other heirs
take per capita, for example, daughter’s sons, brother’s sons,
uncle’s sons, or sister’s sons, who being in the same degree of
relationship are entitled to take as coheirs (d) . Succession
per capita is the rule, and succession per stirpes the exception,
in each case based on a text (c) .

§ 484. The right of succession under Hindu law is a
right which vests immediately on the death of the owner
of the property (/) . It cannot in any circumstances remain
in abeyance in expectation of the birth of a preferable heir,
not conceived at the time of the owner’s death (g) . A son
or daughter who is in the mother’s womb at the time of the
death is, in contemplation of law, actually existing, and will,
on his or her birth, divest the estate of any person with a title
inferior to his* or her own, who has taken in the meantime (h ) .
So, in certain circumstances, will a son who is adopted after
the death (0* But in no other case will an estate be divested
by the subsequent birth of a person who would have been
a preferable heir if he had been alive at the time of the
death (/) . And the rightful heir is the person who is

(b) Sher Singh v Basdeo Singh (1928) 50 All., 904 (grand-nephew
does not represent nephew) ; Mt, Lorandi v. Mt, Nihal Devi (1925)
6 Lah., 124, (female heirs — no representation),

(c) Jolly, T.L.L., 167-168.

(d) Narsappa v. Bhaimappa (1921) 45 Bom., 296 (first cousins).

(e) Nagesh v. Gururao (1893) 17 Bom., 303, 305. As to stridhana
succession, grandchildren inheriting to the stridhana of the paternal
or maternal grandmother take per stirpes^ but representation is not
complete as grandchildren do not inherit along with the children of the
deceased, Karuvpai v. Sankaranarayana (1904) 27 Mad., 300, 308
F.B.; Banerjee, M. & S., 5th ed., 411, 421.

(/) Retirement into a religious life, when absolute, amounts to
civil death; 1 Stra. H.L., 185; Dig., II, 197; V. Darp., 10.

(g) Nilcomul Lahuri v. Jotendro Mohun (1881) 7 Cal., 178, 188,

affd. on appeal (1886) 12 LA, 137, 12 Cal., 18; Appu Bhatta v. Uma

Sundari Amma (1926) 51 M.LJ, 734, 736.

(h) Tagore v. Tagore 9 B.L.R., 397. Supp. Vol , I.A., 47. .57;

Hira v. Buta (1920) 1 Lah„ 128; Bayava v. Parvateva A.I.R,

1933 Bom., 126, 35 Bom. LR., 118 (posthumous daughter).

(i) Ante §§196-201.

(;*) Bamasoondury v Anund 1 W.R., 353; Kalidas v. Krhhnn
2 B.LR. (F.B.). 103; Gordandas v. Bni Ramcoover (1901)

26 Bom.. 449, 467; Narasimharazu v. Virabhadra Rnzu (1894) 17

Mad., 287; Venkateswara Pattar v. Mankayammal (1935) 69 M.L.T.,
410. In the case of unobstructed inheritance, however, it is liable
to be divested by the subsequent birth of a preferable heir or
coparcener or on the recovery of a disqualified person who but for
th#» disqualification would have been a coparcener. Krishna v. Sami
(1886) 9 Mad., 64, F.B; Hira v. Buta I Lah.,128.

Succession
never in
abeyance.

598

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XH,

Propinquity,
criterion of
heirship from
early tiroes.

himself the next of kin at that time. No one can claim
through or under any other person who has not himself taken.
Nor is he disentitled because his ancestor could not have
claimed. For instance, in certain circumstances, a daughter’s
son would be heir, and would transmit the whole estate to
his issue. But if he died befoie his giandfalher, his son
would never take. And the son of a congenital lunatic or
idiot will inherit, though his father could not (A).

§ 485. The earlier Smritis contain the cleaiest indica-
tions that the only criterion of heirship is propinquity At
the same time they imposed upon the neaiest kinsman who
took the wealth of the deceased the duty of performing his
obsequies. He inheiited because he was the nearest of kin
to the deceased and he performed the funeral rites for exactly
the same reason (/). Vishnu lays down. “He who inherits
the wealth, presents the funeral oblations to the deceased” [m) ,
Another Smriti text which is quoted by Apararka and bv
Chandeswara says: “He who takes one’s property, shall
perform the sraddha and shall offer the pindas to the three
ancestors” (;i). The gieat authority of Manu is in favour of
this view: “The funeral oblation follows the family name
and the estate” (o). It is clear therefore that succession to
the estate carried with it the obligation to perform all rites
which were needed for the repose of the deceased, just as
it entailed the duty of discharging his debts (p) As Nila-

(k) See per Holl<)way, J , Chelikani v Suranem (1866) 6 Mad. H C ,
287, 288, Balknshna v Savitribai (1879) 3 Bom, 54, and post §602
The same rule will apply to any dieqiialified person under the
Dayabhaga law, the son of a leper or other disqualified person whose
di^^ability, in respect of a right to a religious office or trusteeship,
IS not removed by the Tlindu Inheritance (Removal of Disabilities)
A\ct, 1928, could inherit it, though his father could not

(/) Dr Sarvadhikari fully agrees with this view, 1st edn , 871

(m) Vishnu, XV, 40, Vishnu adds, “Let a son present funeral
oblations to his father even though he inherits no property’’ XV, 43
Vivadaratnakara, p 88. Jolly TLL, 171, L & C, 184

in) Vivadaratnakara, 88 The author of the Vivadaratnakara

apparently agrees with the author of the Prakasa “that by the term
sraddha here is expressed, those sraddhas which are offered to the
deceased alone” also cited in Dig, If, p 576, Apararka, trans., 21
M.L.J. (Journal), p 316 Jha, H.L S , II, 507.

(o) Manu, IX, 142, the comments of Medhatithi, Kulluka. as well

as of Vijnanesvaia (Mit., I, xi, 3132) are quite clear on

the point. A text of Sankha and Likhita cited in the

Vivadaratnakara refers to the partaking of property and pinda,
Vivadaratnakara, p, 56; Jha, H.L.S., II, 258. This, says Dr. Jolly, is
in accordance with Roman and Greek precedents: T.L.L., 171-172.

(p) The due performance of sacrifices was one of the three debts,
Manu, V, 35, 36,

PARA. 485 .] PROPINQUITY ONLY CRITERION.

599

kantha points out, *The funeral rites of the deceased as far
as the tenth day’s rites inclusive, must be performed by
whoever takes the wealth, including the king himself” (q).

As Mr. Colebrooke rightly says, “It is not a maxim of the
law that he who performs the obsequies is heir, but that
he who succeeds to the property must perform them” (r).

That propinquity determines the right of heirship is in 1*^^®
terms enunciated as a rule of law by Manu, Apastamba and **
Brihaspati. The rule of Manu in substance amounts to this:

“the estate of the deceased goes to the nearest sapinda” (s).

Apastamba says: “On failure of sons the nearest sapinda
lakes the inheritance” (t), Brihaspati, who is concerned
with Vyavahara law is decisive : “When there are several
jnatis (sapindas), sakulyas (samanodakas) , bandhavas
(cognates), whosoever of them is the nearest shall take the
wealth of him who died leaving no issue” (u). The rule as
laid down in* the above Smritis comes to this: in the absence
of specific texts, propinquity is alone the criterion of
succession (v).

The rule of propinquity laid down by Manu is accordingly In the
applied by the Mitakshara in cases not provided for by the ^fi^kshara.
Smritis to determine the order of succession, as when it prefers
the mother to the father, the full blood to the half-blood.

(q) V. May., IV, vm, 29 citing Vishnu., X, v, 40. According to
a text of Katyayana cited in the Mitakshara: “Heirless property goes
to the king, deducting however a subsistence for the females as well
as the funeral charges” (II, 1, 27). “The king shall take the
property to which there is no heir, save what may be needed for the
maintenance of the women and for the sraddha of the deceased”,
Arthasastra, III, v, 27 (Jolly’s edn.), Jha, H.L.S., II, 520.

(r) Stra. H.L., 242.

( 5 ) Manu, IX, 187; Buddhasingh v. Laltu Singh (1915) 42 I.A.,
208, 217, 37 All., 604, 613; the preceding verse in Manu, IX, 186,
defines the term ‘sapinda’ in terms of the undivided oblations, but does
not constitute the pinda offering the ground of title. The clause, “the
fifth has no connection with them”, when he undoubtedly succeeds
in due order, is a very clear indication that the verse is concerned only
with the definition of ‘sapinda’ as confined to three degrees, and not
with the rights of succession. But a different view is taken by Jimuta-
vahana, XI, vi, 17, 18, whose assumption that in verse IX, 186,
Manu treats a son as nearer than a grandson, is contradicted by Manu
himself in verse IX, 137; see Kulluka’s gloss on IX, 137. And Manu
does not rest the sakulya’s right on pinda offering.

(l) Apas., II, 6, 14, 2.

iu) Brih., XXV, 61, 62; cited in V. Mayiikha, IV, viii, 19 and in
Viramit., Ill, v, 2 (Setlur ed., 419).

(f;) Viramit., SetlurV ed., p. 419; Jha, H.LJS., H, 506,

600

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

And in dealing with succession among the samanodakas and
bandhus (m;), Vijnanesvara says comprehensively: ‘‘Nor is
the claim in virtue of propinquity restricted to sapindas; but,
on the contrary, it appears from this very text that the rule
of propinquity is effectual, without any exception in the
case of samanodakas as well as other relatives, when they
appear to have a claim to the succession” (a:;).

Other

commentators.

Nilakantha works out, in his own way, the principle of
propinquity as enunciated by Manu and Brihaspati with
reference to the succession of the sister, the paternal grand-
father and the half-brother He adds, “all the sapindas and
samanodakas shall take in the order of propinquity” (y) Nila-
kantha’s application of Manu’s text as declaring propinquity
to the deceased in the matter of succession to the stridhana is
most significant: for there is hardly any question of religious
efficacy in that case The Vivadaratnakara and the Vivada-
chintamani cite and follow the rule of propinquity laid down
by Manu, Apastamba and Brihaspati and do not refer to
religious efficacy as an admissible test in determining
succession (z). The Madana Parijata, whose author wrote
a commentary on the Mitakshara, clearly says that heirship
arises by nearness of relation and interprets the text of
Manu as laying down that he who among the sapindas by
particles of body is the nearest shall take the wealth of the
deceased And he extends the same principle to samanodakas
and bandhus (a) . Citing Brihaspati’s text, Madhava savs,
“he who is nearest amongst handhavas takes first” (b). The
Sarasvati Vilasa treats the text of Manu as ‘enjoining’
precedence in propinquity (c). It adds that the view of the
Mitakshara is that the order of succession in Yajnavalkya’s
text is itself based on the rule of nearer and more remote
relationship in order to remove embarrassment when there
are several rival claimants id). Balambhatta, the comment-
ator on the Mitakshara compares the order of succession

iw) Mit, IT, in, 3, II, IV, 5, II, vi, 2.

ix) Mit , II, HI, 4 The word is 'sanianodakadi* It means sania-

nodakas and bandhus

(y) V. Mayiikha, IV, viii, 19-21

(yi) V May, IV, x, 28.

(z) Vivadaiatnakara, XXXIV, 11, 16, 17 (pp. 84, 87), Vivada-
chintamani, p. 295, et seq.

(а) Madana Panjata, Cal. edn., 6734, Setlur’s trans., II, 531-2.

(б) Parasara Madhaviya, §41.

(c) Sarasvati Vilasa, paras 568-9, 589, 595, 597.

(d) Ibid, 478. It also states that the order of succession to pro-
prietorship is based on reason alone and is not scriptural, para 477.

PARA. 485.] viramitrodaya’s views discussed.

601

with the order of competence to perform sraddha rites, and
arrives at the conclusion that propinquity depends upon the
actual degree of blood-relationship and does not depend
upon any other cause such as the competence to offer pindas.
In his quaint language, “propinquity is dependent upon
numerousness of the parts of the same body” (e).

The Smritichandrika differs from the Mitakshara in the
definition of sapinda itself and holds that it means connec-
tion by funeral offerings (/). Its views on the question
therefore are of no weight. Almost alone of the Mitakshara
authorities, the Viramitrodaya, while fully agreeing with the
Mitakshara in its doctrine of sapindaship and in most of its
details, differs somewhat on this matter from the Mitakshara.
Its opinions on the question are not only opposed to the
views of Vijnanesvara but are inconsistent with itself and
are neither logical nor clear. For instance, dissenting from
the Mitakshara, it prefers the father to the mother and the
mother to the father according to their respective merits in
each case (g). Again, it apparently accepts the Dayabhaga
division of sapindas and sakulyas, limiting the former to
three degrees of kindred {h ) . In that connection it prefers
the male issue to the widow on the ground that the former
confer the greatest amount of spiritual benefit — a wholly
superfluous reason. It says: “Since, in the chapter on
Partition of Heritage, the conferring of spiritual benefit is
by the term ‘therefore’ set out as the reason: hence it is
indicated that he alone is entitled to get the estate, on whom
the estate having devolved conduces to the greatest amount
of spiritual benefit of the deceased owner, and that proximity
in this way is to be accepted as a general rule and reason-
able” (K^). In other passages, Mitramisra emphasises his
view that the capacity for presenting funeral oblations is

Viramitio-
daya’s views
discussed.

(e) Sarvadhikan, 2nd edn., 380-381.

(/) Smritichandrika, Samskarakanda (Mysore edn ) , 180. So also
Apararka, 21 MLJ. (Toiirnal), p. 314; See Buddha Singh v. Laltu
Singh (1915) 42 I.A., 208, 223, 37 All., 604.

(g) “Because such propinquity being the standard whereby the
succession of brothers and sisters is determined cannot reasonably be
taken to be the criterion for the preference of the mother to the
father and because propinquity is of no consequence m thiss case.”
Viramit., Ill, iv, 3 (Setlur’a edn.), p. 414. And its views on the
point have not been accepted.

(h) Viramit., Ill, i, 11 (Setlur’s edn.), p. 393.

(Ai) Viramit., Ill, i, 11, Setlur’s ed., 393; cited in Muthusami v.
Muthukumaraswami (1893) 16 Mad., 23, 30; Jatindra Nath v.

Nagendra Nath (1931) 58 I. A., 372, 378.

602

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

Religious
principle
not the rule
of the

Mitakshara.

not alone the criterion {i). In a passage dealing with the
preference of brothers of full blood to those of half-blood,
he lays down citing the texts of Manu and Brihaspati that
the greatness of propinquity is alone the criterion of succes-
sion in the absence of special provision (;) . So too, as
between the sons of uterine brothers and the sons of
half-biotheis (A). He insists on the same test of proximity
in dealing with samanodakas and bandhus(/). From
his entire discussion, it is abundantly clear that Mitramisra,
while supporting the Mitakshara order of succession on the
ground of propinquity and authority, is anxious to show
that on Jimutavahana’s own principles too, the oidei of Vijna-
nesvara is fully justified. Occasionally he brings in religious
efficacy meiely as an additional reason to support the
Mitakshara order. In no case does he determine the
succession of any heir on the principle of religious efficacy
alone oi where it is in conflict with propinquity. It is an
academical and dialectical point with him for the purpose
of countering the views of the Bengal writers and supporting
the conclusions of the Mitakshara even on their doctrine.
The only place where he admits a departure from the order of
proximity according to birth is in connection with the son,
grandson and great-grandson whose succession, he says, is
based on the authority of texts recognising the right by birth
of all the three. Disputing with Jimutavahana on his own
ground, he says that “the capacity for presenting funeral
oblations is not alone the criterion of the right to heritage,
since the younger brothers are entitled to the heritage although
they are not competent to offer oblations while there is the
elder brother” (m). It is the right of representation, not the
pinda offering, that in the case of male issue, determines
their rights.

§ 486 The doctrine of religious efficacy, though it is
the foundation of the Dayabhaga system as laid down by
Jimutavahana, was not therefore the guiding principle of
the ancient Smritis as it is certainly not of the Mitakshara
system. In the chapters which treat of succession, the
Dayabhaga and the Dayakrama-Sangraha appeal to that
doctrine at every step, testing the claims of rival heirs by

(0 Viramit., II, i, 23-a. ib,, 343.

(;) Ibid., Ill, V, 2, Setlur’s edn., p. 419.

(k) Ibid., Ill, vi, 2, ib., p. 420.

(/) Ibid., Ill, vii, 4, 5, lb., p. 424.

(m) Ibid, II, i, 23-a, fSetlur’a edn., p. 343).

PARA. 487 .] MITAKSHARA EXCLUDES RELIGIOUS EFFICACY.

6 <

the numbers and nature of their respective offerings. The
Mitakshara never once alludes to such a test (n).

§ 487. Much of the misconception in the earlier period of
the administration of Hindu law has been due to the fact that
throughout the Mitakshara, Mr. Colebrooke invariably trans-
lates the word ^sapinda’ by the phrase ^‘connected by funeral
oblations” (o), and the word Samanodaka’ by the phrase
“connected by libations of water” — ^terms which were used
by Vijnanesvara purely as technical terms in the portion
of his work dealing with inheritance. In dealing with
marriage he had already in Acharakanda defined sapinda-
relationship both affirmatively and negatively so as to
exclude the idea of religious efficacy. He expressly stated
there that the term ‘sapinda’ must be understood in the sense
of blood-relationship throughout his work wherever it
occurs (p). Dealing with ^sraddhas\ he recurs to the matter
and states emphatically that sapinda-relationship does not
depend upon the relationship of the deceased through the
offering of pindas and his getting it or not, but that it
depends upon having the same particles of one’s body {q),
Vijnanesvara’s new definition was unmistakably intended not
only to include bandhus or cognates but to divest the word
‘sapinda’ of its religious meaning which it had brought with
it from the sphere of religion and ritual into the sphere of
law. This was in keeping with the new orientation
which he gave to vyavahara or civil law by treating property
and inheritance as purely secular matters. As the crucial
text of Yajnavalkya was specially expressed to be applicable
to all men and all classes (r), he rested the rules of law on
purely piactical and rational considerations. Combating the
view that the wealth of a regenerate man is designed for
religious uses exclusively, Vijnanesvara says: “If that were
so, other purposes of opulence and gratification, which are
to be effected by means of wealth, must remain unaccom-
plished; and if that be the case, there is an inconsistency
in the following passages of Yajnavalkya, Gautama and

in) This passage is cited with approval by the Judicial Com-
mittee in Balasubrahmanya v. Subbayya (1938) 65 I.A., 93, 102, A.I.R.
1938 P.C., 34.

(o) Jolly, T.L.L., 168; Buddha Singh v. Laltu Singh (1915) 42
LA., 208, 217, 37 All., 604.

ip) Ante § 108.

iq) Mit. on Yajn., I, 253-4; Vidyamava^s trans., p. 340.

ir) Yaj., II, 135136.

Mitakshara

orientation

deliberate.

604

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

Manu, “Neglect not religious duty, wealth or pleasure in the
proper season” ( 5 ).

The significance of the change which Vijnanesvara effected
is apparent when his views are contrasted with those which
were current in his time and which were vigorously reasserted
by Jimutavahana. According to the latter, wealth is designed
only for religious purposes and rules of inheritance must
subserve them. “Two motives are indeed declared for the
acquisition of wealth; one temporal enioyment, the other
the spiritual benefit of alms, and so forth Now, since the
acquirer is dead and cannot have temporal enjoyment, it is
right that the wealth should be applied to his spiritual
benefit” (t) .

Agnates

exclude

cognates.

Propinquity,
not offerings,
the test of
heirship.

§ 488. This preference of consanguinity, or family
relationship, to efficacy of religious offerings, is further
shown by the rule laid down in the Mitakshara, and the
works which follow its authority, according to which the
bandhus, or relations through a female, never take until the
direct male line, down to, and including the last samanodaka
has been exhausted (u). This is consistent with the earlier
ideas of propinquity preferring the male line to a descent
through females, but it is vitally inconsistent with the doctrine
of religious efficacy, since the samanodakas offer no pindas
to the ancestors of the deceased while some of the bandhus
who are postponed to them are not only sapindas, but very
close sapindas and offer oblations to the ancestors of the
deceased such as the sister’s son, paternal aunt’s son and
father’s paternal aunt’s son and the maternal uncle. The
libations of water by the samanodakas are graphically
described by Medhatithi (v) and their efficacy from the
religious point of view is of the most negligible description

(s) Mit., II, i, 22.

it) Daya Bh , XI, 6, 13, XT, 6, 31.

(u) Narada, XIII, §51; Mitakshara, IT, 5 and 6. Vivada Chinta-
mani, 297*299, V May, IV, 8, §22. Rutcheputty v Rajunder (1839)
2 M.I.A , 132; Srimuti Dibeah v. Rany Koond (1870) 4 MI. A., 292,
7 W.R, 44; Bhyah Ram v. Bhyah Ugur (1870) 13 M.T A , 373, 14
WR, 1, Thakoor Jeebnath v. Court of Wards (1875) 2 I A, 163, 23
WR., 409; Naraini Kuar v Chandi Din (1887) 9 All, 467; affd in
Privy Council, (1892) 14 All., 366. See Ram Baran v. Kamla Prasad
32 All , 594, where a samanodaka of the 14th degree was preferred
to a sister’s son.

(v) Mit. on Yajn., Ill, 3, 5; “In the case of persons within
samanodaka relationship, all that people shotUd do is to enter a river
or some other water-reservoir till the water reaches up to the navel.
— they should face south and having offered water with the right hand
tinward without looking back, should return home”. Jha, Medhatithi
Bhashya, Vol. Ill, part I, 77.

t»AtlA. 4^.} SUCC£!SSiON toAS^D OU t»ftOPlNQUtTV.

60S

Again, Jimutavahana prefers the father to the mother,
because he presents two oblations in which the deceased son
participates, while the mother presents none (w). Vijnanes-
vara takes exactly the opposite view on the ground that %er
propinquity is greatest’ (x). To take yet another instance,
he agrees with Jimutavahana in preferring the whole
blood, among brothers, to the half. But he rests his prefer-
ence on the same text “to the nearest sapinda etc.,” saying,
very truly, that “those of the half-blood are remote through
the difference of mothers”; while the Dayabhaga grounds
it on the religious principle, that the brother of the whole-
blood offers twice as many oblations in which the deceased
participates, as the brother of the half-blood (y). So the
right of a daughter to succeed is rested by Jimutavahana
upon the funeral oblations which may be hoped for from
her son, and the exclusion of widowed, or barren, or sonless
daughters, is the logical result (z). The Mitakshara follows
Brihaspati in basing her claim upon simple consanguinity.
As a son, so does the daughter of a man proceed from his
several limbs. How then should any other person take her
father’s wealth? And he excludes neither the widowed nor
the barren daughter, but prefers one to another, according
as she is unmarried or married, poor or rich, that is,
according as she has the best natural claim to be provided
for (o).

The right of a daughter’s son when he succeeds on the death
of the widow and daughter certainly rests far more upon con-
sanguinity than on religious efficacy. The preference of the
daughter’s son to agnates, whose claims based upon
pinda offerings are stronger, can only be explained
by propinquity. No doubt according to Manu, Vishnu
and Yajnavalkya, a daughter’s son should perform
sraddha for the maternal grandfather (6). But from the
way Vishnu expresses it, the rule appears to be recommenda-
tory (c). According to the Mitakshara, the sraddha of the
maternal grandfather is not obligatory but is only optional
except when the mother’s sapindikarana has taken place

Duty of
daughter’s
son optional.

(w) D. Bh., XI, 3, 8 3.
ix) Mit., II, iii, §§ 3, 4.

(y) Mit., II, iv, §5; D. Bh., XI, v, 12.

(z) D. Bh., XI, ii, 1-3. 17.

(а) Mit., II, ii, 24; Viramit., Ill, iii, pp. 412-3.

(б) Manu, IX, 13, Vishnu, LXXV, 7; Yajn., I, 228-243.

(r) Vishnu, ib,; of course where on the maternal grandfather’s
death, the daughter’s son performs his first obsequies and sapindikarana^
he would, in practice, perform the annual sraddhas as well.

606

t^ARVANA SRADDMA.

[chap. Xll,

with the maternal grandfather (d). This latter practice
appears to be obsolete. Dr. Sarvadhikari says that sons are
legally bound to perform parvana rites in honour of their
paternal ancestors and that the daughter’s son is not legally,
but morally, bound to offer sraddhas to his maternal
ancestors (e). It would be more correct to say that the sons
are under a religious obligation to perform them and that
their failure would entail sin. It is wholly optional with the
daughter’s son who would incur no sin by his failure to per-
form the sraddha but who would earn merit if he did it (/).
Dealing with the obsequial rites of a deceased person, the
Mitakshara is clear that after the sapandikarana, all the
annual and parvana sraddhas should be done by the son
alone as an obligatory duty; foi persons other than the sons,
the duty is not obligatory (g).

Parvana § 4^^* Neithei the assumption that every bandhu or

Sraddha sapinda is bound to offer parvana sraddhas or tri-ancestral

not a test. paternal ancestois of the deceased nor the assump-

tion that the paivana sraddha has to be or is performed by the
male issue, whether aurasa or adopted, in all parts of India
and in all cases as an obligatory rite appears to be correct (A).
Therefore the foundation for the view that the deceased
participates in the oblations made to his three immediate
paternal or maternal ancestors, when they happen to be the
maternal or paternal ancestors of the bandhu claimant, is far
too slender to support the theory of religious efficacy. No
doubt foi the purposes of the application of that theory
it would make no difference whethei a man in fact

(flf) Mu on Yajn., 1, 243 tVidyarnava’s iran^' , 327, 347) Ac-
((3iding to the Sarasvativilasa, “Laxraidara long ago pointed out the
differences on this matter between the schools. But Vijnanayogi and
others say that the conjoined sraddha of the maternal grandfather is
optional” (para 707, p, 138).

(e) Sarvadhikari, 2nd edn., p. 664.

(/) Mit. on Yajn, t, 228, 243 (Vidyarnava’s trans , pp. .127, 347).
See the whole cjnc'^tion discussed in Dr. Bhatlacharya’s Hindu Law,

2nd ed , p. 488

(g) Mu., on Y'ajii., 1, 255, Vidyarnava’s trans., p. .350, Vishnu
says that the sraddhas addressed to uncles brothers, etc., must be
performed without manlias, Vishnu, LXXV, 7, Jolly, TLL, 169

{h) Dr. Jogendranath Bhattacharya says: “As a sraddh, the
Parvana is not of much importance . . . Practically, the Parvana
sraddhas are verv seldom celebrated even by the most pious Hindus”
(H.L., 2nd ed., p. 488) What he says is probably true of Bengal, but
It IS performed in the parvana form in the South, (Vaidyanatha Dikshi-
hyam, Grantha edn, 338 9) The conflicting usages in the different
parts of India are set out in the Mitakshara It is apparently optional
wuii a man to perform sraddha in either the parvana or the ekoddhishta
form according to family usage. (Vidyarnava’s trans,, p. 358) See
also Sarkar, HX., 7th edn., 629.

PARAS. 489490 .] BANDHU SUCCBSSlON BASED ON PROPtNQUtTY.

607

performed sraddhas or not, if he was under a religious
duty (A^). But in order that it may have validity it would
certainly be necessary that a man should be under an impera-
tive religious duty in all cases to offer the tri-ancestral
sraddhuy in other words, to make the pinda offerings to his
three paternal and maternal ancestors. If then the duty is not a
uniform rule in the books and is at best only optional and usage
is various, no general principle can be deduced from that
which is not a universal injunction. Jimutavahana was how-
ever perfectly justified on his own premises, namely that
sapinda-relationship meant only connection by pinda offer-
ing and that the wealth of a deceased person must be devoted
to his spiritual benefit, in evolving rules of succession on
the basis of the parvana-sraddha offerings to ancestors,
whether he wished to make them obligatory or whether at the
time he wrote his work, they were in his school, a common
customary observance (i). But the express ruling in the
Mitakshara on the sraddha rites that sapinda relationship
with the deceased is wholly independent of his being benefited
by the pindas or not, is decisive and is consistent only with
the conclusion that propinquity must be judged without
reference to the grades, number or quality of the funeral
offerings (/) .

§ 490. The Mitakshara not only expressly states the Propinquity
principle of propinquity in connection with bandhus, but
makes it quite clear that their enumeration and classification
are independent of any capacity to confer spiritual benefit
on the deceased. The Mitakshara enumerates nine bandhus:

(A) Atmabandhus: (1) Paternal aunt’s son; (2) Maternal
aunt’s son; (3) Maternal uncle’s son; (B) Pitrubandhus:

(4) Father’s paternal aunt’s son; (5) Father’s maternal
aunt’s son; (6) Father’s maternal uncle’s son; (C) Matru-
bandhus: (7) Mother’s paternal aunt’s son; (8) Mother’s
maternal aunt’s son, and (9) Mother’s maternal uncle’s
son (A). Of these, on the principle of religious efficacy, the
Dayabhaga recognises only (1), (2), (3), (4) and (7) as
bandhus and excludes the remaining four. The accompany-
ing diagrams will show that these four bandhus, namely, the
father’s maternal aunt’s son, father’s maternal uncle’s son,
mother’s maternal aunt’s son and the mother’s maternal

(Ai) Jatindra Nath v. Nagendra Nath (1931) 58 I.A., 372, 379, 59
Cal. 576.

(i) Guru Qobind Shaha Mondal v. Anand Lai Chose (1870)
Beng. L.R., 15 F.B.

(/) Mit«, on Yajii., 1, 254; Vidyarnava's trans., 340*
ik) Mit., n, vi, l-2»

608

SUCCESSION UNDER MiTAKSHARA tAW. [cHAP. Xll,

Cognates

through

father’s

mother.

Cognates

through

mother’s

mother.

uncle’s son are not bound to offer pindas to any ancestor
to whom the owner was bound to offer (k^).

A

paternal father’s father’s mateinal

X grandmother maternal aunt uncle

I , J I I

mothei = father son (.5) son (6 )

OWNER

Here it will be seen that the sons of the father’s maternal
aunt, and of the father’s maternal uncle, that is, the father’s
cognate kindred on his mother’s side, are only connected
with the owner through his paternal grandmothei . Now,
neither of these persons piesents offerings to anyone to
whom the owner presents them. Their offerings are presented
to A and his ancestors. Those of the owner are presented
to his father’s line, and to his mother’s line, that is, the line
of X. Consequently, their offerings are neither shared in by
the owner, nor do they operate in discharge of any duty
which he is bound to perform. Similarly, the sons of the
mother’s maternal uncle and aunt, that is the mother’s cognate

A

X maternal mother’s maternal mother’s maternal

grandmother uncle aunt

I . I 1

Y = mother son (8.) son (9 )

I

0\\ NER

kindred, on he/ mother’s side aie only connected with the
owner through his niaternal grandmother. The same
observation as before applies to them. Their offerings are
presented to A and his line. Those of the owner are presented
to the lines of Y and X, that is, to his own male ancestors,
and those of his mother. Here again there is no conceiv-
able community of religious benefit. But on Vijnanesvara’s
principles, the whole scheme is thoroughly intelligible.
The first of the three classes contains the owner’s
first cousins; the second contains his father’s first

(/cl) Dr. Sarvadhikan says (p. 746) (1st edn.) “We at once admit
that the father’s and the mother’s bandhus could not possibly
be brought within any system which depends upon religious
merits accruing from parvana rites alone. But they could surely be
brought within a system which lays down that any benefit whatsoever
IS a sufficient title to inherit.” He suggests that these persons are
competent to perform the ekoddhishta or individual rites of the de-
ceased. But so are strangers, such as a pupil, a friend or the king
But the whole point that is missed is that they were not considered
by Jimutavahana himself as persons conferring any spiritual benefit.

PARAS. 49049L] PROPINQUITY SOLE BASIS.

ouy

cousins, and the third contains his mother’s first cousins. All
of them are postponed to the samanodakas, because they are
connected through a female, and are therefore members of
a different family from that of the owner. But when they
are admitted, they are brought in upon natural principles (Z) .

The Bombay and Madras authorities give full effect to them
as they include under the term ‘bandhu’ females who can make
no offerings at all such as the daughters of a brother or of a
sister.

§ 491. The Mitakshara order of succession amongst Religious
bandhus is itself conclusive against religious efficacy being a
measure of propinquity. For instance, (1) it prefers the measure of
father’s maternal uncle’s son and the father’s maternal aunt’s propinquity,
son as pitrubandhus to the mother’s paternal aunt’s son
who is a matrubandhu. While the latter offers pindas to the
maternal ancestors of the deceased, the former offer none
either to the paternal or the maternal ancestors of the
deceased. (2) * It prefers the maternal uncle, the maternal
uncle’s son and the maternal aunt’s son as atmabandhus to
the father’s paternal aunt’s son who is a pitrubandhu. While
the latter offers pinda to the paternal ancestor of the
deceased, the former offer them only to the maternal
ancestors, which are admittedly of inferior religious efficacy.

(3) Again, it prefers, as an atmabandhu, the paternal aunt’s
son’s son who offers no pindas either to the paternal or the
maternal ancestors of the deceased to the father’s paternal
aunt’s son {pitrubandhu) and the mother’s paternal aunt’s
son {matrubandhu) who offer pindas respectively to one
paternal ancestor and to two maternal ancestors of the
deceased.

Lastly, it should be observed that the order of those No concord-
competent to perform sraddhas is substantially different
from the order of those entitled to succeed. For instance, inherit and
in the Mitakshara school, in the matter of sraddhas the obsequial
brother and the brother’s son have precedence over parents;
the father is preferred to the mother; the daughter-in-law,
sister and sister’s son are preferred to the sapindas and
samanodakas, and the married daughter to the unmarried
daughter (m).

(/) The Viramitrodaya distinctly states that the cognates come in
the above order “by reason of greater propinquity”. Ill, vii, 5 (Setlur’s
edn., 424).

im) Nirnayasindhu, Sarvadhikari, 2nd edn., pp. 96-99; Balam-
bhatta, i6., pp. 380-1; for the order in Benares school, see ih,, p. 88;

Sraddha Mayukha (Gharpure’s edn., 20-25) ; a similar order is given
for Southern India in Vaidyanatha Dikshitiyam (Kumbakonam edn.),

575; for the order in the Bengal school, see Sarvadhikari, 2nd edn.,

92-94; Bhattacharya, H.L., 2nd edn., 657-658. See Appx., I-B.

41

610

Conclusion.

Full blood
preferred to
half-blood.

PREFERENCE OF FULL BLOOD. [cHAP. Xll,

§ 492. The conclusion therefore is irresistible that the
Mitakshara does not admit religious efficacy either as a basis
of heirship or as a measure of propinquity. The rules govern-
ing the right to perform sraddhas or the offering of pindas,
though in part determined by propinquity are also
in part influenced by different considerations. Religious
efficacy as deduced from these rules can therefore furnish no
safe or satisfactory test as regards the order of succession.
When Vijnanesvara has taken such great pains by his elabo-
rate exposition of sapmdaship to get rid of the doctrine of
religious efficacy in the matter of succession, the re-intro-
duction of that principle for ascertaining the heir in any
case not already determined by the commentators would
probably lead to uncertainties and anomalies in the law of
succession.

§ 493. The preference of the whole to the half-blood is
recognised in the Mitakshara law of succession which
rests it on the greater propinquity of the one over
the other. It applies in the succession not only of brothers
but of all classes of heirs, such as sapindas, samanodakas, and
bandhus. The preference is however confined to sapindas
of the same degree of descent from the common ancestor (n).
Amongst such sapindas those who are descended from the
same mother as the propositus are nearer in propinquity
than those descended from a different mother (n^) ; for
instance, a maternal uncle of the half-blood is postponed
to a maternal uncle of the full blood (o) ; a paternal uncle
of half-blood is preferred to sons of uncles of full blood (p) ;
a father’s half-sister’s son is preferred to mother’s full sister’s
son ( 9 ) ; a father’s brother of whole blood is preferred to a
father’s brother of the half-blood (r). Hindu law recognises
no difference between the full blood and the half-blood
except in a competition inter se (s). In Jatindra Nath Roy
v. Nagendra Nath Roy, the Judicial Committee approved of

in) Muthuswami v. Muthukumaraswami (1896) 23 LA., 83, 19
Mad., 405, Suba Singh v Sarjaraz Kunwar (1896) 19 All., 215, F.B.;
Ganga Sakai v. Kesri (1915) 42 I.A., 177, 37 AIL, 545; Jatindra v.
Nagendra (1931) 58 I.A., 372, 59 Cal., 576; Garuddas v. Laldas (1933)
60 I.A., 189 overruling Shanker v. Kashinath (1926) 51 Bom., 194;
V It hat V. Ram Rao (1899) 24 Bom., 317 and Samat v. Amra (1881)

6 Bom., 394; Sham Singh v. Kishen Sahai (1907) 6 C.L.J., 190 (a
Mitakshara case) , Ardhanan v. Ramaswami (1913) 25 M.L.J., 8;
Nachiappa Gounden v. Rangasami Gounden (1915) 28 M.L.J., 1 F.B.

(ni) (1896) 19 AIL, 215, 232 F.B.

(o) (1896) 23 1 A ,83, 19 Mad , 405 supra affg (1893) 16 Mad.. 23.

(p) (1915) 42 T.A., 177, 37 AIL, 545 supra.

iq) (1931) 53 I.A., 372, 59 Cal., 576 supra aSg. (1927) 55 Cal., 1 1155.

(r) (1933) 60 I. A., 189, 64 M.L.J., 660, 37 C.W.N., 637.

( 5 ) See cases cited in note (n) supra.

PAliAs. 49S494.]

Women’s rights.

611

the decision in Bhola Nath v. Rakhal Doss, a Dayabhaga
case, that the sons of a step-sister share equally with the sons
of a full sister and observed that the rule was equally appli-
cable to Mitakshara succession (s^). But the distinction
between full blood and half-blood is not confined to sapindas
tracing descent from a male ancestor in the male line. Bhola
NatKs case merely rests on a Dayabhaga authority ( 5 ^).

§ 494. It has often been stated that women were, as a ^^omen’s
rule, excluded from inheritance in the earliest times. Cer- Rights of
tainly, the rights of women as heirs have been the subject Succession,
of controversy till the age of the commentators. Undue
importance has been attached to the omission in the Smritis
to name all female relations as heirs for we find the rules
of inheritance themselves were veiy scanty. While in some
respects the position of women particularly that of the
daughter, the wife and the mother, was high, passages dero-
gatory to women scattered in the earliest literature have been
generally taken to spell the inferior status of women (/). In Smritis.
On the other hand numerous laudatory references to women
are also to be found and must be set against the former. “The
father protects a woman in her childhood, husband during
her youth, her son in old age; a woman is never fit for in-
dependence” (a) . This obviously has no bearing on women’s
rights of succession. One or two obscure references in the
Vedas are often relied upon not only by modern writers
but by some commentators to support the view that women
are in general incompetent to inherit. Baudhayana cites a
text of the Veda, ‘Women are considered to be destitute of
strength and of a portion’ (v) . Madhava explains the Vedic
dictum as meaning only that the wife does not get a share of

( 5 1) (1931) 58 LA., 372, 59 Cal., 576 approving (1884) 11 Cal.,

69; Shashi Bhushan v. Rajendra (1913) 40 Cal., 82.

( 52 ) The dictum in Shankar v. Raghoba A.LR. 1938 Nag., 97, 100
preferring a full sister's son to a half-sister’s son is opposed to the
observation in Jatindra*s case, as also the obiter dictum in Krishna-
bihari v. Sarojinee (1932) 60 Cal., 1061, that when an heir is named,
it cannot include both whole blood and half-blood.

(f) Jolly, T.L.L., 192, 193.

U) Manu, V, 148, IX, 3; Bdudh., II, 2, 3, 44-46; Yajn., I, 85;

Nar., XIII, 31; Vishnu, XXV, 12.

(v) Taittiriya Samhita, VI, 5, 8-2; Vedic Index, I, 353, II, 486;

Nirukhta, III, 4; Baudh., II, 2, 3, 44-46; I, 5, 11, 1-14. Satapatha
Brah., IV, iv, 2, 13. “And in like manner does he now by that
thunderbolt, the ghee, smite the wives and unman them and thus
smitten and unmanned, they neither own any self nor do they own
any heritage”. This appears to be too slender a basis for the general
exclusion of women. Ninikhta, “Therefore it is known that the male
is the taker of wealth and that a female is not a taker of wealth.”

See Jogdamba v. Secretary of State (1889) 16 Cal., 367, 371, where
a different translation is given. See Jha, H.L.S.| II, 470.

612

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

the soma beverage {w) , The Viramitrodaya states however,
as the better opinion, that the text refers only to those women
whose right to inherit has not been expressly declared (:x;).
The Smritichandrika puts a different interpretation on the
Vedic text (y). Madhava’s interpretation of it is accepted as
correct by Varadaraja as well as by Messrs. West & Buhlei,
Dr. Jolly, Mr. Kane and by the Bombay High Court (z ) .

As the normal condition of the family was undivided,
occasion would seldom arise for recognition of the rights
of women. The dictum in Manu that the wife, a son, and
a slave aie declared to have no property (a), merely meant
that they were not independent: for as Kulluka points out,
Manu himself enumerates six kinds of stridhana (ft). The
early importance of stridhana is by itself sufficient to show
that women had substantial rights though their position was
inferior to that of men. Foi the purpose of inheritance to
stridhana, the first acquirer at least was considered a fresh
stock of descent and women were preferred to men. Pro-
bably the explanation is that in the case of inheritance to
the property of men, males were preferred to women as heirs,
while in the case of inheritance to woman’s property, women
weie preferied to men as hens, but neither were completely
excluded from inheritance to the other’s pioperty (b^) *

Entitled to
shares on
partition

What is clear, however, is that notwithstanding the Vedic
text, when a partition took place, we find from the earlier
writings, that shares were allotted to the wife, mother
and grandmother (c) . The daughter, the mother and the
grandmother were evidently first recognised as heirs to one
who died without male issue id). The status of the appointed

(w) Madhaviya §44; Dr. Jolly also says that this refers only to

the soma beverage, L. & C., 186, Kane, note at p. 6.

ix) Viramitrodaya, Setlur’s ed , pp 406, 423, Daya Bh., XI, vi,

8 , 11 .

(y) See the Smritichandrika, IV, 5-11.

(z) Jolly L. C, 186, T L L., 219, Kane, note at p 6, Lallubhai v.
Mankuvarbai (1878) 2 Bom, 388, 428.

(а) Manu, VIII, 416.

(б) Manu, IX, 194; for the text of Katyayana, see Jha, H.L.S , II,
528-9, 551-2, Yajn., II, 143.

(61) Mit , I, HI, 10.

(c) Manu, IX, 217; Yajn., II, 115 (mother); Bri., XXV, 64
(mother and daughter).

id) Manu, IX, 130 (daughter) , IX, 217 (mother and grand-
mother) ; Yajn., II, 135 (mother); Arthas, III, 5; Shamasastri, 197-8;
Vishnu, XVII, 5, 7.

PARAS. 494495 .] MITAKSHARA ON WOMEN’S RIGHTS.

613

daughter even from Vedic times was undoubtedly very high.

As early as Kautilya’s Arthasastra, in the absence of sons,
the daughters born to a man of approved marriage took his
estate. The right of the widow, so long as remarriage was
permitted and common was nebulous; but when her remar-
riage was prohibited, her succession was at once fully admitted.

Even the right of a sister would seem to have obtained occa-
sional recognition (e).

§ 495. The rights of women in the family to mainten- Mitakshara
ance were in every case very substantial rights and, on the on women’s
whole, it would seem that some of the later commentators **
erred in drawing adverse inferences from the vague references
to women’s succession in the earlier Smritis. The views of
the Mitakshara on the matter, which are unmistakable, ought
to be decisive. Vijnanesvara nowhere endorses the view that
women are incompetent to inherit, he does not even refer to
the Vedic text. He points out that the text of Narada which
declares dependence of women is not incompatible with their
acceptance of property (/). Vijnanesvara does not accept
the position that the claims of such females only are to be
admitted as have the support of express texts. On the other
hand, he holds that the paternal great-grandmother who is
not mentioned in any special text is entitled to inherit as a
gotraja sapinda; and from what he says in II, v, 5, it is
quite clear that the wives of the other lineal ancestors also
are entitled to succeed as gotiaja sapindas. Vijoanesvara's
views on these points which are followed by the other com-
mentators and by the Courts are conclusive against the assump-
tion that there is any general principle of Hindu law that
women are excluded from inheritance unless named in
the ancient texts. His definition of sapinda and his
postponing the father to the mother, the grandfather
to the grandmother and the great-grandfather to the
great-grandmother, as well as his treatment of stridhana are
clear indications in the same direction.

(c) As to sister, Mann, IX, 118, IX, 212; Yajn., II, 124; Bn.,
XXV, 75, 64; as to widow, c/. Arthas, III, ii, 32; Shamasastn, 188,
Narada, XII, 97-101.

(/) Mit., II, 1, 22-25 Narada, XIII, 31, Vijnanesvara goes so far
as to say that unmarried sisters share with their brothers their father’s
estate, Mit., I, vii, 14. In Man v. Chinnammal (1885) 8 Mad., 107,
Muttusami Aiyar, J., erroneously thought (p. 129) that the Mit.
speaks of the Vedic rule of exclusion of women. The Mit. (II, 1, 14,
26) does not refer to the Vedic text or to Baudhayana but to some
unknown author’s dicta which he controverts. Balambhatta is clear
on the point. See Mr. Colebrooke’s note to Mit., II, 1, 14.

614

Female heirs.

Statutory

heirs.

Daughter-in-
law and grand-
daughter-in-law,

Right of
a widow.

SUCCESSION UNDER MITAKSHARA LAW [CHAP. XII,

§ 496. The law in all the provinces except in Madras
and Bombay, however, is that women are, in general, excluded
from inheritance to the estate of a man who dies without
male issue. Till recently, the recognised exceptions were the
widow, the daughter, the mother, the father’s mother and the
father’s father’s mother (g) ; and also other female lineal
ancestors above the last (h).

§ 497. Now, by the Hindu Law of Inheiitance
(Amendment) Act, 1929, a son’s daughter, daughter’s
daughter and sister have been admitted as heirs under the
Mitakshara law and placed immediately after a father’s father
and before a father’s brother.

The Hindu Women’s Rights to Property Act, 1937,
has made the widow of a man’s predeceased son and the
widow of a predeceased son of his predeceased son as well
as his own widow heirs to his property, both along with and
in default of his male issue(i).

§ 498. The right of the widow to succeed as heir to her
husband was recognised at least two thousand years ^go.
Vriddha Manu, Yajnavalkya, Vishnu, Brihaspati, Katyayana.
Sankha Likhita and Devala fully recognise her right to
succeed to her husband (/). Narada’s refusal to recognise
her, evidently after the time of Vishnu and Yajnavalkya, is
puzzling. It must have been due to a difference in the usages
of his country where remarriage evidently prevailed as. about

(g) Guru Gobind v Anand Lai (1870) 5 Beng LR., 15, 37 (FB);
Nanki V Gauri Shankar (1905) 28 All, 187, Jagan Nath v. Champa
(1906) 28 All, 307; Tirath Ram v Mt Kahan Devi (1920) 1 Lah.,
588, Mt. Sujan Devi v Jagiri Mai, ib , 608, Jang Bir v. Mt Jumna
(1931) 12 Lah., 534, Krishna v Bhaiya Rajendra (1927) 2 Luck., 43,
AIR 1927 Oiidh, 240, (1885) 8 Mad, 107, 127 supra

(h) Jogdamba v Secretary of State (1889) 16 Cal., 367, 373.

(i) See post Chapter XIV The Act does not affect succession to
estates descendible to a single heir

(/) Vishnu, XVn-4, Yajn, II, 135, Mann, IX, 185, 212, 217 and
Kulluka’s gloss Dig, 11, 522 sqq For Katyayana’s text, see Mit.,
II, 1, 6; For Vriddha Mann’s text, see Mit , II, 1, 6, “The widow
of a childless man, keeping unsullied her husband’s bed, and persever-
ing in religious ceremonies, shall present his funeral oblations and
obtain his entire share”; Brih., XXV, 46, 47, 55. Apastamba, Vasishtha
and Narada do not apparently recognise the right of the widow as
heir. For Sankha Likhita’s and Devala’s texts, see Dig., II, 532;
Narada, XIII, 28, 29. Foi other texts, see Jha, H,L.S., II, 475.

PARAS. 498499.] widow’s right of succession.

615

the same time, Brihaspati is most emphatic in her favour.
She is in fact the first heir to the property of a man who dies
without male issue (it).

In all the authoritative Digests and Commentaries, the
widow’s right of succession to her husband is universally
acknowledged (/). The elaborate discussion in them was
more to resolve the seeming conflicts in the Smritis and to
discuss how far her property was to be used for temporal
and spiritual purposes as well as her obligation to remain
chaste.

§ 499. Vijnanesvara’s conclusion is that the widow is en-
titled to inherit to her husband, if he died separated and not
reunited and left no male issue; it is immaterial whether the
division was in status only or was followed by a division by
metes and bounds. The text of the Mitakshara is: “Therefore,
it is a settled rule, that a wedded wife, being chaste, takes
the whole estate of a man, who being divided from his
coheirs and not subsequently reunited with them, dies leaving
no male issue” (m). And this rule which necessarily followed
from the view taken by the Mitakshara of the rights of
undivided members, applied, till recently, in the Mitakshara
jurisdictions. Even where a man died undivided but left
separate or self-acquired property, his widow succeeded to it
though the undivided property passed by survivorship to his
coparceners, as was settled by the Shivaganga case. Their

(A;) Katama Natchiar v. Raja of Sivaganga (1863) 9 539,

2 W.R. (P.C.), 31. As to Benares, 2 W. MacN., 21, see Hiranath v.
Baboo Ram (1872) 9 B L.R., 274, 17 W.R., 316; Chowdry Chintamun
y.Nowlukho (1875) 2 1.A., 263; Rup Singh y. Baisni {ISBS) 11I.A., 149,

7 AIL, 1; Mithila, Vivadachintamani, 290; Pudmavati v. Baboo Doola
(1847) 4 M.I.A., 259, 264, 7 W.R. (P.C.) , 41 ; Mt, Anundi v. Khedoo (1872)
14 M.I.A., 416, 18 W.R., 69. Bombay V. Mayukha, IV, 8, §6; Goolab
V. Phool 1 Bor., 154 (173) ; Govind Das v. Muhalukshumee ib., 241
(267) ; Mankoonwar v. Bhugoo 2 Bor., 139 (157) ; Gun Joshee v.
Sugoona 2 Bor., 401 (440) ; W. & B., 82. In some cases in the Punjab
and among the Jams a widow appears to succeed to her husband’s
estate, even though undivided. But the general practice seems to
follow the Mitakshara; Punjab customs, 56. Sheosingh v. Mt, Dakho
(1874) 6 N.-W.P., 382, 406. So by local custom, a widow is sometimes
excluded from succession by the brothers even where the property is
self-acquired. Rarichan v. Perachi (1892) 15 Mad., 281.

(/) Mit., II, 1; (Narada’s texts, XIII, 25, 26, 28, are explained by
Vijnanesvara in Mit., II, 1, 20 and 27). Daya Bh., XI, 1; Smriti-
chandrika, XI, 1; Madhaviya, para 65; Sarasvati Vilasa, paras 399,
478-535; Vivada Ratnakara, XXXIV; Vivada Chintamani, 289*291;
Vyavahara Mayukha, IV, iv, 18; Viramit., III-l. Apararka (21 M.L.J.
Journal, 308-317) contributes an interesting discussion. Visvarupa
alone (on Yajn., II, 135) limits the word ‘wife’ to a pregnant wife
on the authority of a text of Vasistha. For Sulapani's view, see
Dipakalika, Ghose H.L., Vol. II, 546.

(m) Mit., II, 1, 39; Rewan Per shad v. Mt, Radha (1846) 4 M.I.A.,
137, 148, 152; Suraneni v. Suranem (1869) 13 M.I.A,, 113; Gajapathi
V. Gajapathi ib,, 497.

Widow heir
to separate
property.

616 SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

Lordships referring to the Mitakshara (II, 1, 39) observed:
“The text is propounded as a qualification of the larger and
more general proposition in favour of widows; and conse-
quently in construing it, we have to consider what are the
limits of that qualification rather than what are the limits of
the right” (/i). According to the Dayabhaga, on the other
hand, which proceeded on the giound of her right to offer
funeral oblations to her deceased husband, a widow succeeded
to her husband’s share when he was undivided, just as she
would to the entife propertv of one who was separated (o).
But as in a Dayabhaga joint family the husband’s interest
is held in quasi-severalty, the distinction is merely a verbal
one ( p ) . Now, however, the two systems are assimilated in
Before this respect by the Hindu Women’s Rights to Property Act,

recent Act. 1937, which has repealed the lules of the Mitakshara and the

Dayabhaga so as to make a Mitakshara widow succeed to the
coparcenary interest of her husband in the partible property
of the joint family and, along with his male issue, to his
separate property, and to enable a Dayabhaga widow to suc-
ceed along with the male issue both to the coparcenary
interest and the separate propertv of her husband.

§ 500. According to the Mitakshaia. the wives of sagotia
sapindas are themselves sagotra sapindas and they are
included in Yajnavalkya’s term ^golrajah^ [q). But while
the wives of the ancestors are expressly recognised by the
Mitakshara as heirs, it is silent as legards the wives
of descendants and collaterals. The son’s widow, the grand-
son’s widow, the brother’s widow, and the widows of othei
sapindas, cannot come in as there is no place for them in the
compact series of heirs up to the brother’s son and grandson.
Nor can they come in before the male sapindas upto the
seventh degree (rj. There does not seem to be any insuperable
objection why wives of descendants and collaterals within
seven degrees should not come in after all the male sapindas

in) Katama Natchiar v. Raja of Sivaganga (1863) 9 M.I.A., 539,
607-611, W. & B, 378, 2 W. MacN., 92; Tikan v. Tekari (1878)
5 I.A., 160, 4 Cal., 190, Periaswanu v Periaswami (1878) 5 I.A., 61,
1 Mad., 312. See ante $ 481.

(o) Daya Bhaga, XI, 1, §§25, 26, 27, D.K.S., 11, 2, §41, F. MacN.,
5. See cases 1 M. Dig, 316, per West, J , Lakshman v. Satyabhamabai
(1877) 2 Bom., 508; Durga Nath v. Chintamom (1904) 31 Cal., 214

ip) Dr. Jolly was impressed by this difference. T L L , 192. But
see Daya Bh., XI, 1, 26.

iq) Mit., II, V, 1, 3, 5, Lullubhoy v. Cassibai (1881) 7 I.A., 212, 5
Bom., 110, 118, 121, 123, 125, Man v Chinnammal (1885) 8 Mad., 107,
127; Jogdamba v. Secy, of State (1889) 16 Cal, 367, 373.

(r) Mit., II, V, 5.

PARA. 500.] widow’s right of succession.

617

are exhausted and before the samanodakas (Mit. II, v, 6).

But the decisions of all the Courts, except in Bombay, have
refused to recognise their rights.

A widow therefore can only succeed to her husband's Widow is
property or rights, that is, to the property which

was actually vested in him, either in title or in possession,
at the time of his death (5). She must take at once at his
death, or not at all. No fresh right can accrue to her as
widow in consequence of the subsequent death of some one
to whom her husband would have been heir if he had lived («) .

Hence, no claim as heir could, before the new Act, be set

up on behalf of the widow of a son (a) , or of a grandson (v) ;

or can even now be set up on behalf of the widow of a

daughter’s son (w)^ or of a brother (^), or of an uncle (y),

or of a cousin (z). While in some of the cases the contest

was between the widow of a sapinda and some other heir, who

was held to have a preferential title, in others, however, she

was excluded on the general principle that she did not come Statutory

within the line of heirs at all (a). Finally it was held that exceptions

the Crown would take by escheat m preference to her (b).

This is still the law of Bengal, Benares and Madras (c) sub-
ject, of course, to the two new statutory exceptions (d).

(s) Viramit., p. 164, § 13, p. 197, § 2. If his title was vested,
though his enjoyment postponed, she will equally take. Rewun Persad
V. Radha Beeby (1846 ) 4 M.I.A., 137, 176; Hurrosoondery v. Rajessuree
2 W.R.. 321.

{t) Balamma v. Pullayya (1895) 18 Mad., 168.

(u) 2 W. MacN., 43, 75, 104, 2 Stra. ILL., 233, 234; Ananda Bibee
V. Nownit (1883) 9 Cal, 315; Punjab Customs, 64. The claim of a
daughter-in-law is supported by Nanda Pandita and by Balambhatta,

Jolly, T.L.L., 199; Thayammal v. Annamalai (1896) 19 Mad., 35, 37.

According to Visvarupa, § 2, where an equal partition was made by a
father, the widows of sons and grandsons were entitled to a share equal
to that which their husbands would have taken. (Yajn., II, 129, Tnv.
ed., 242.)

(v) Ambawow v. Button Bom. Sel. Rep., 132.

(w) 2 W. MacN., 47.

{x) 2 W. MacN., 78, 2 Stra. H.L., 231; Peddamuttu v. Appu Rau
(1864) 2 Mad.H.C., 117.

iy) Upendra v Thanda (1869) 3 B.L.R. (A.CJ.), 349; sub nomine,

Wopendra v. Thanda 12 W.R., 263; Gaun v. Rukko (1880) 3 All., 45*

(z) Soorendranath v. Mt. Heeramonee (1868) 12 M.I.A., 81.

{a) Gaun v. Rukko (1880) 3 All., 45; Ananda Bibee v. Nownit
(1883) 9 Cal.. 315.

(5) Jogdamba Koer v. Secretary of State (1889) 16 Cal., 367.

(c) Per curiam, Lulloobhoy v. Cassibai (1881) 7 I. A., 230, 5 Bom.,

110; Vithaldas v. Jeshubai (1880) 4 Bom., 221; per West, J., (1887) 11
Bom., p. 292; per Muttusami Iyer, J., (1885) 8 Mad., pp. 119, 127,

129.

id) See ante §497.

618

widow’s right in BOMBAY.

[chap. XII,

Widows in
Bombay.

§ 501. The law in Bombay has been, however, different.
According to it, the widows of gotraja sapindas as
such are entitled to inherit as collaterals and are to be
preferred to male gotrajas in a more remote line. This pro-
ceeds on the view that succession goes in the order of sapinda-
ship. The High Court of Bombay in Lulluhhai v. Manku
varbai (e) accept the text of Manu (ix, § 187) with the gloss
of Kulluka so that it runs: — ‘To the nearest sapinda, male
or female, after him in the third degree, the inheritance next
belongs.” Sapindaship as explained by Vijnanesvara makes
even the wives of brothers, sapindas to each other, because
they produce one body with those who have spiung from
one body; on the same principle the daughter-in-law is a
sapinda {f). According to Messrs. West and Buhlei,
the Western lawyers “prefer the sister-in-law to the
sister’s son, and to a male cousin, and more dis-
tant male sagotra -sapindas, the paternal uncle’s widow
to the sister, the maternal uncle, and *the paternal
grandfather’s brother, and they allow a daughter-in-law, and
a distant gotraja-sapinda’s widow to inherit” (g). The result
of this doctrine is, that “the members of the compact series
of heirs specifically enumerated take in the order in which
they are enumerated (V. M„ IV, 8, § 18) preferably to those
lower in the list and to the widows of any relatives, whether
near or remote, but where the group of specified heirs has
been exhausted, the right of the widow is recognized to take
her husband’s place in competition with the representative of
a remoter line” (h). The females in each line of gotrajas
are excluded by any males existing in that line within the
limits to which the gotraja relationship extends. For instance,

(e) W. & B, 114, 122; (1878) 2 Bom, 388, affd, (1880) 7 LA.,
212, 5 Bom, 110, following and affirming Lakshmibai v. Jayram (1869)
6 Bom. H C. (A (i J ), 152. The Privy Council, in affirming the decision
in (1878) 2 Bom , 388 supra, expressly rest the right of widows “on
the ground of positive acceptance and usage*'. (1880) 7 I.A., 212, 237,
5 Bom., 110, Vithaldas v Jeshubai (1880) 4 Bom, 219.

(/) W. & B., 451-455 As to the paternal aunt, see Ganesh v.
JTaghu (1903) 27 Bom., 610.

(g) The rule, however, is limited to women who, by marriage into
a particular gotra, become gotraja-sapindas. Hence the widow of a
daughter’s son would not inherit the estate of the maternal grand-
father. Vallubdas v. Sakerbai (1901) 25 Bom., 281, p. 285; Nahal-
chand v. Hemchand (1885) 9 Bom., 31 (brother’s son’s widow) ;
Madhavram v. Dave (1897) 21 Bom., 739 (brother’s son’s widow) ;
Kesserbai v. V alab (1880) 4 Bom., 188 (father’s widow or step-mother) ,
Rachava v. Kalingappa (1892) 16 Bom., 716 (paternal uncle’s widow) ;
Lallubhai v. Cassibai (1880) 7 LA, 212, 5 Bom., 110 (paternal uncle’s
son’s widow); Roopchund v. Poolchund (1824) 2 Bor., 670 (son’s
widow). The sister takes after the paternal grandmother and before
the paternal uncle’s widow.

(h) NahaJchand v, Hemchand (1885) 9 Bom., 31 at 34.

PARAS. 501-502.] daughter’s right of succession.

619

the son’s widow is the first amongst the widows of
gotrajas (i)« A paternal uncle’s son or grandson is preferred
to the widow of another paternal uncle of the propositus (/),
or of his son (A). But the widow of a brother is a nearer
heir than the paternal uncle’s son (/).

§ 502. The daughter was from the earliest times re-
cognised as an heir, probably at first as an appointed
daughter and later whether appointed or not. By the time
of Kautilya, daughters were clearly heirs {m), A text of
Manu states her right of inheritance: “A son is even as one’s
own self, and the daughter is equal to the son; so long as
she is there as the father’s own self, how can any other take
the property” (/i). Some of the commentators on Manu read
the text as referring only to an appointed daughter. But the
word used is *duhita' (daughter) and not putrika (appointed
daughter). The appointed daughter is already disposed of
in Manu, IX, 127-128. Brihaspati who closely follows Manu
clearly understood it to refer to an unappointed daughter,
for he himself says, “A daughter, like a son, springs from
each member of man; how then should any other mortal
inherit the father’s property while she lives?” (o). Vishnu,
Yajnavalkya and Katyayana also recognise the right of a
daughter (p). The Mitakshara, citing the texts of Katyayana
and Brihaspati declares that “the daughters inherit in the
absence of the wife” (q). Apararka holds that “in the case
of daughters, ownership in the father’s wealth arises by birth
itself as in the case of sons” (r). The Smritichandrika and
following it, the Viramitrodaya, as well as the Vivadachinta-

(i) Vithaldas v. Jebhubai (1880) 4 Bom., 219, 221 (son’s widow
succeeds before paternal uncle’s son) , Appaji v. Mohun Lai (1930)
54 Bom , 564, 591 F.B. (son’s widow preferred to brother's son’s son) ;
Rachava v. Kalingappa (1892) 16 Bom., 716; Pranjivan v. Bai Bhikhi
(1921) 45 Bom., 1247, Raghunath Shankar v. Laxmibai (1935) 59
Bom , 417 (widow of paternal uncle preferred to father’s sister) .

(;) Kashibai v. Moreshvar Raghunath (1911) 35 Bom., 389.

(A) Lallubhoy v. Cassibai (1880) 7 I A, 212, 5 Bom., 110.

(/) Basangavda v. Batangavda (1915) 39 Bom., 87.

(m) Arthas., Ill, 5; Shamasastri, 197.
in) Manu, IX, 130; Jha, H.LS., II, 481.

(o) Brih., XXV, 56.

(p) Vishnu, XVII, 5; Yajn., II, 135; Katyayana cited in the
Smritichandrika, XI, ii, 20; Parasara cited in the Dayabhaga XI, ii,
5; Mit., II, ii, 1-5; Dayabhaga, XI, ii; Vivadaratnakara, XXXIV, 5-7;
Vivadachintamani, 291-292; V. Mayukha, IV, 8, 10-12; Parasara
Madhaviya, S. 36; Sarasvativilasa, para. 536-561; Varadaraja, 34.

iq) Mit., II, ii, 2.

(r) Apararka trans. in 21 M.L,J. (Journal), 317,

Daughter.

620

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

Right of
mother.

Great-grand-

mother

Women born
in the family.

mani understand the text of Manu as referring to the
unappointed daughter and reject the contrary view of the
other commentators ( 5 ).

§ 503. The mother is not mentioned as an heir by
Gautama, Baudhayana, Apastamba, Vasishtha or Kautilya.
Her claim, however, and that of the grandmother, are
expressly asserted by Manu: “A mother shall obtain the
inheritance of a son who dies without leaving issue, and, if
the mother be dead, the paternal grandmother shall take the
estate” (^) . Vishnu also inserts the mother in the list of heirs
next to the father (w), and Yajnavalkya places both parents
after the daughters (v). Her claim is also mentioned by
Brihaspati and Katyayana (m;). Narada states her right to a
share on partition by the sons after the death of their father,
but does not refer to her as an heir (a:;) .

§ 504. The right of the paternal greal-giandmolher,
though not mentioned in any text, is expressly deduced by
the Mitakshara on the analogy of the paternal grandmother.
The Mitakshara says ‘Tn this manner upto the seventh must
be understood the succession of samanagotra sapmdas” (y).
The Subodhini commenting on the Mitakshaia carries the
enumeration further by including as hens the paternal great-
grandfather’s mother and grandmother and states that the
same rules apply in the case of samanodakas ( 2 ) . Accord-
ingly in Jogdamha Koer v. Secretary of State, the wives of
lineal ancestors bevond the great-grandmother were held to
be heirs la)

§ 505. On the view taken in all the provinces, except in
Bombay and Madras, of the general incapacity of women to
inherit, the daughters of sagotra sapmdas, whether descend-
ants, ascendants or collaterals, are not recognised as heirs (6).

( 5 ) Smritichandrika, XI, 11 , 7-19, 21, Viramit , III, 11 , 5 (Setlur’s
II, 406-412) , Vivadachmtamam, 292. This was also the opinion
of Vijnanesvara Mit., II, 2, 5.

{t) Manu, IX, 217, c/. ix, 185, where Manu makes the father and
then the brothers take

(n) Vishnu, XVII, 7.

(v) Yaj , 11, 136.

iw) Brih., XXV, 63, Dig, II, 550 552.

(x) Narada, XIII, 12.

(y) Mit , II, V, 5.

(z) Subodhini, Setlur’s edn , 787, 788

(a) (1889) 16 Cal., 367, 373, Buddha Singh v. Laltu Singh (1915)
42 I.A., 208, 226, 37 All., 604, approving of the judgment of Telang, J.,
in Rachava v. Kalingappa (1892) 16 Bom., 716.

(6) Nanhi v Gauri Shankar (1906 ) 28 All., 187; Jagan Nath v.
Champa (1906) 28 All., 307; Jang Bir v. Mt, Jamna (1931) 12 Lah.,
534.

PARAS. 505-506.] sister’s right of succession.

621

But the son’s daughter, the daughter’s daughter and the sister
have now been brought in as heirs by the Hindu Law of In-
heritance (Amendment) Act, 1929. Though the controversy
as regards the sister is now settled in her favour by this Act,
the principles upon which her rights have been recognised in
Madras (§509) are of general application to all daughters
born in the family.

§ 506. The sister is declared in some of the Smritis as Sister,
entitled to take a share either upon an original partition or
after a reunion (c) . Brihaspati says, “If there be a sister, she
is entitled to a share of his property. This is the law regarding
the wealth of one destitute of issue and who has no wife or
father” (d). According to Sankha and Likhita,“the daughter
shall take the woman’s property, and she alone, is heir to
the wealth of her mother’s son who leaves no male issue” (e) .

A text of Brihaspati is quoted in Jagannatha’s Digest: “But
she who is his 'sister is next entitled to take the share; the law
concerns him who leaves no issue, nor wife, nor father nor
mother” (/) . And Kulluka, explaining Manu, IX, 212, refer-
ring to a reunited brother affirms the sister’s succession if he
leaves neither son nor wife nor fathei nor mother (g). Nanda
Pandita and Balambhatta interpret the text of the Mitakshara
which gives the inheritance to brethren, as including sisters,
so that the brothers take first, and then the sisters (A). But
this view is opposed to the whole spirit of the Benares law.

It is not accepted even by the Mayukha, which makes the
sister come in after the grandmother under a different text (i),
and has been rejected by the Judicial Committee (/) .

(c) Manu, IX, 118, 212; Vishnu, XVIII, 35; Yajn., II, 124; Brih.,
XXV, 75, 64. Narada, XIII, 13; Dig., II, 534.

id) Brih , XXV, 75.

(e) Dig., II, 353. The comment of Jagannatha, following Ratna-
kara, is that it refers to the succession as sister of one who was an
appointed daughter and therefore had the status of a brother. See
Vivadaratnakara, XIX, 10*11.

(/) Dig., II, 534.

(g) This seems to be the opinion of Sarvajna Narayana and
Raghavananda. See Di. Buhler’s note on Manu, IX, 212.

(A) Mitakshara, II, 4, § 1, note. This interpretation was accepted
in Sakharam v. Sitabai (1879) 3 Bom., 353, as one ground for admitting
a sister to succeed. Kesserbai v. Valab (1880) 4 Bom., 188, 204;
Rudrapa v, Irava (1904) 28 Bom., 82. Chandavarkar, J., in Bhagwan
V. Warubai (1908 ) 32 Bom., 300 rejected this interpretation, confining
It to cases governed by the Mayukha alone.

(i) V. May., IV, 8, § 19; Bhagwan v. Warubai (1908) 32 Bom.,
300, 311.

(/) Thakoorain v. Mohun (1867) 11 M.I.A., 386, 402; Chinnamnud
V. Venkatachala (1892) 15 xMad., 421, 422.

621

Her right
admitted in
Bombay.

sister’s right in BOMBAY. [cHAP. Xll,

§ 507. In Bombay, however, a sister’s right has
long been settled beyond dispute. She is considered
a gotraja sapinda, on the ground that this term is
satisfied by her having been born in her brother’s
family, and that she does not lose her position as
a gotraja by acquiring on her marriage her husband’s
gotra. That being so, her place among the gotrajas is
determined by nearness of kin, and is settled to be between
the grandmother and the grandfather (k) , before the half-
brother, and after the full brother’s son under the Vyavahara
Mayukha (/) but under the Mitakshara only after the half-
brother and his son (m). The sister however as Nilakantha
takes care to point out is not on her marriage of the same
gotra as her brother (n). The Mayukha is in conflict with
the Mitakshara as the latter makes it beyond doubt that
gotrajas mean samanagotra sapindas; but the former has
been followed (o).

(A) V. Mayukha, IV, 8, 19-20, Vinayak v Luximabaee (1864) 9
M.IA., 516 affirming 1 Bom H.C , 117; per West, J, Lallubhai v.
Mankuvarbai (1878) 2 Bom, 388, 445, Westropp, CJ., prefers resting
her right upon her affinity as sapinda even though not a gotraja^ and
upon the express authority of Brihaspati and Nilakantha, ib , 421 See
as to her position in Sholapiir, Lakshmt v. Dada Nanaji (1880) 4 Bom.,
210, Biru V Khandu (1880) 4 Bom, 214, in Dharwar, Rudrapa v Irava
(1904 ) 28 Bom, 82, Mulji v CAirsandas (1900) 24 Bom., 563. The
reason for the inclusion is not, as was originally supposed, that the term
‘brothers’ under the Mitakshara included ‘sisters’ but that the
Mitakshara and the Mayukha must be so construed as to harmonise
both, Bhagwan v W arubai (1908) 32 Bom., 300. 311. 312, Appaji v.
Mohanlal (1930) 54 Bom., 564, 595 F.B., Bai Kesserbai v Hunsraj
(1906) 33 I A . 176, 30 Bom, 431, 442

(/) Sakharam v. Sitabai (1879) 3 Bom., 353, (1900) 24 Bom., 563
bupra^ (1900) 32 Bom., 300 supra.

im) Han Annaji v. Vasudev Janardan (1914) 38 Bom., 438;

Bhagwan v. W arubai (1908) 32 Bom., 300. At page 314, it is sug-
gested that It IS not unreasonable to infer that she (sister) may be
deemed to be a sagotra sapinda of her brother. This is opposed both
to Nilakantha’s express view and to reason and proceeds upon a mis-
conception of a passage in the Mitakshara whuh relates to the gotra
to be used in offering pinda to a deceased mother when her sapindi-
karanani is performed with her father and others and not with her
husband and others and is only of historical interest; for, it is a
clear rule of modern Hindu law that a wife on her marriage enters
her husband’s gotra and cannot retain at her or her son’s option, her
father s gotra. See the dictum of West, J., in Lallubai v. Mankuvar-
bai (1878) 2 Bom., 388, 446, “The blood gotraship of women cannot
safely be extended beyond the sister.” Vijnanesvara’s clear rule is '
that every wife is a sagotra sapinda of her husband Mit on Yajn., I,
52 (Vidyarnava’s trans, 94).

(n) “Indeed she has no sagoirata^ le, membeiship of the same
gotra but that has not been mentioned here as an operating cause for
her succession”. V. May., IV, 8, 19.

(o) Mit., II, V, 1, 3,

PARAS. 508-509.] SlSTER^S RIGHT IN MADRAS.

623

§ 508. In Bombay, the (laughters of descendants, ascend-
ants and collaterals within five degrees inherit as bandhus in
the order of propinquity (p), such as the son’s daughter (qr),
the daughter’s daughter, the brother’s daughter (r), the
paternal uncle’s daughter («) the sister’s daughter (^) , the
mother’s sister, the father’s sister (a) and so on. The father’s
sister however according to the Mayukha is a gotraja sapinda
and comes in before bandhus but after all other gotraja
sapindas (v). But the question whether under the Mitakshara
law as administered in Western India, the father’s sister is
to be regarded as a sagotra or a bhinnagotra sapinda is left
open. “It is enough to say that she is not more remote than
a bandhu” (w).

§ 509. In Madras also, it has long been settled that
the sister is an heir. In Lakshmanammal v. Thiruvengada
Mudali, the Madras High Court observed: “In discussing
the right of ‘the widow, Vijnanesvara explains the texts
cited in support of the doctrine that women are in-
competent to inherit in a sense which would justify the
recognition of the claims of female heirs generally. He no-
where expressly accepts the position that the claims of such
females only are to be admitted as have the support of express
texts. He himself declares that certain female ancestors not
denoted in express texts are sagotra heirs, e.g., the great-
grandmother. He does not pretend to give an exhaustive list
either of the sagotra or bhinnagotra sapindas. Vijnanesvara
recognised the texts excluding females so far as to give
priority to males and he indicates with sufficient clearness
the rules which are to be observed in ascertaining the order
of succession . * . As a bhinnagotra sapinda, a sister falls

(p) Shidramappa v, Neelatvahai (1933) 57 Bom., 377, 383.

(</) West & Buhler, 4th edn., 465

(r) Balkrishna v. Ramkrishna fl921) 45 Bom., 353.

( 5 ) Kenchava v. Girimallappa (1929) 51 I. A., 368, 48 Bom., 569.

(^) Dattatraya v. Gangabai (1922) 46 Bom., 541; Bai Vijli v. Bai
Prabhalakshrm (1907) 9 Bom. L.R., 1129 (father’s paternal aunt’s son’s
daughter) .

(u) Vijiarangam v. Lakshuman (1871) 8 Bom. H.C.f O.C.J., 244.

( 1 ;) (1871) 8 Bom. H.C. (O.C.J.), 244 supra; Ganesh v. Waghu
(1903) 27 Bom., 610; Bai Vijli v. Prabhalakshmi (1907) 9 Bom. L.R.,
1129.

{w) Saguna ?. Sadashiv (1902) 26 Bom., 710, 713-714; Ganesh v.
Waghu (1903) 27 Bom., 610; Lallubhai v. Mankuvarbai (1878) 2
Bom., 388, 446.

Female
bandhus in
Bombay.

Sister in
Madras.

624

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

Female

bandhut.

within the definition of a bandhu and, except on the con-
struction of the rule respecting female inheritance that it
absolutely excludes all but certain excepted females, and
does not merely postpone their claims, there seems no sufifi-
cient reason for refusing her the position to which this Court
has declared her entitled” ix). They leferred to the text of
Sankha-Likhita already cited but did not notice the
unambiguous text of Bnhaspati cited by Jagannatha (y).
The reasoning of the judgment is unassailable and equally
applies to daughters of all descendants, ascendants and
collaterals within five degrees. This view is reaffirmed after
an examination of the authorities by Subramania Ayyar and
Davies, JJ., in V enkatasubramaniam v Thayarammal (z) ,
Accordingly it has been held that a father’s sister, a son’s
daughter, a daughter’s daughter, a brother’s daughter, and a
sister’s daughter are bhinnagotra sapindas or bandhus within
the meaning of the Mitakshara and are not precluded by their
sex and are in the line of heirs (a). Of these, the rights
of the son’s daughter, the daughter’s daughter and the sister
have, in all the provinces, been placed by legislation beyond
dispute in all Mitakshara successions.

^ 510. Undoubtedly, the daughters of descendants,
ascendants and collaterals belonging to the same agnatic
family aie sapindas of the propositus in the Mitakshara sense
of the term inasmuch as they have community with him of
particles of the same body and they aie sagotras befoie
their marriage. After their marriage, not being sagotra
sapindas or samanodakas, they can come in only as bhinna-
gotra sapindas or bandhus; for they have been transferred
by marriage to a gotra other than that of their birth This
derives further support from a passage in the Mitakshara
explaining the term ‘sapinda’ in the Acharakanda and also

(x) Lakshmanammal v. Tiruvengada (1882) Mad, 241, 249,
250 (half-sister) following Kutti v. Radhakristna (1875) 8 MHC, 88
( sister) .

(y) Dig , IT. 534. See § 506
iz) (1898) 21 Mad, 263.

(a) V enkatasubramaniam v. Thayarammal (1898) 21 Mad., 263
(brother’s daughter) ; Venkata Narasimha v. Surenani Venkata (1908)
31 Mad., 321, Avudai Ammal v Ramalinga A I.R. 1926 Mad., 1163
(son’s daughter) , Navaneetha Krishna v The Collector of Tinnevelly
(1935) 69 MLJ, 632, 668, 669, Narasimma v. Mangammal (1890) 13
Mad., 10 (father’s sister); Nallanna v Ponnal (1891) 14 Mad, 149
(son’s daughter); Chinnammal v. V enkatachella (1892) 15 Mad, 421
(father’s sister), Mamappa v. Arumugath (1894) 17 Mad, 182

(daughter’s daughter) , Sundarammal v Rangasami (1895) 18 Mad ,
193, 198 (sister’s daughter).

PARAS. 510-511.]

FEMALE BANDHUS.

625

from the enumeration of bandhus in the Vyavaharakanda,

The former mentions two sisters or a sister and a brother as
'heads of two different branches of sapindas (6). The latter
leaves no room for doubt that the mothers of male bandhus
referred to therein must themselves be bandhus as the
sapindaship of their sons is only through them and
as in the computation of degrees, the mothers are
counted as bandhus (c) . But the daughters of daughters born
in the family, such as the daughter’s daughter, sister’s
daughter, and paternal aunt’s daughter will necessarily be
bhinnagotra sapindas or bandhus both before and after their
marriage.

The dictum, however, expressed in Lakshmanammal
V. Thiruvengada Mudali and in V enkatasuhramaniam v.
Thayarammal id) that even before marriage the daughters
of sapindas must be regarded as bhinnagotra sapindas because
of their capability of losing by their marriage membership
of the gotra in which they were born does not appear to be
valid. No doubt, marriage of daughters is in a sense obliga-
tory but there have always been exceptions in theory and
practi( e i e ) . Before they are married, it is difficult to see on
what principle or under what text the daughters of
•descendants, ascendants ond collaterals in the agnatic family
can be excluded from sagotra sapindas and included in
bhinnagotras; if a fiction is permissible, the question what
is that gotra to which they are to be assigned has to be
answered. The view that daughters boin in the family are
not entitled to inherit if they are not married, but that if they
are married, they and their daughteis are entitled to inherit
appears to be illogical.

511. A step-sistei is an hen in Bombay both under the Step-sister.
Mitakshaia and the Mayukha (/). In Madras also, she would
•come m as a bandhu after maiiiage (g), though before

ib) Mit.. on Yajn., I, 53, Vidyarnava's trans., 110.

(c) Mit , II, VI, 1-2. A« to their order among bandhus, see §553.
(</) (1882) 5 Mad., 241; (1898) 21 Mad., 263.

(e) €,g,^ Manu , IX, 89.

(/) Jana v. Rakhma (1919) 43 Bom., 461; Trihiim Purshottam
•V. Natha Daji (1912) 36 Bom., 120 (Mayukha) ; Kesserbai v. Valab
<1880) 4 Bom., 188, 207.

ig) Kumaravelu v. Virarut (1882) 5 Mad., 29.

42

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XU,

€ 26 f

Slep-motlier.

Exclusion
of women
discussed.

mariiage, she would only be a sagotra sapinda. The Hindu*
Law of Inheritance (Amendment) Act, 1929, confers upon
the half-sister as upon a full sister rights of succession in*
cases governed by the Mitakshara law in all the provinces.
The conflict of opinion on the interpretation of the Act is^
referred to subsequently (i^§ 544, 554).

According to the Mitakshaia, it is clear that a stepmother
cannot succeed to her stepson [h) It is equally clear that
she IS his gotraja sapinda. It would seem therefore that she
could come in as such after all his male sapindas (i^512).
Accordingly, in Bombay, she succeeds as the wife of a gotiaja
sapinda 501) (^). But it is faiily well-settled that neither
she noi the widow of an\ other gotraja sapinda is entitled to
succeed as heir in an\ other province (§ 500) (;)

§ 512. It must be admitted that the decisions of co;*irts
lef using to lecognise as hens the wives of sagotra sapindas
aie neithei consistent with the Mitakshaia* noi with the
established analogies and the lules of justice and equity
which have been ajiplied in deducing lules of succession.
The general incapacity of women to inherit which is not
admitted in Madras and Bomba> but which is treated as a
rule of the Mitakshara law^ in the other piovmces does not
rest upon the leading Sanskrit authoiities of the Mitakshaia
school or upon reasons which are cither uniform oi logical.
In the first place, if it was a Vedic rule of exclusion of women
from mheiitance, it would have been followed by all the
Smritis and the commentaries But both the Smiitis and the
commentaiies have recognised the lights of se\eial female
hens 494-495, 502-504) In the second place, if it was a
Smriti rule of exi lusion that women are not entitled to rights*
of inheritance unless the\ are named in the texts, it has long
ago been departed fiom b\ all the coinmentatois and couits.
For instance, by Visvaiupa who lecognises the rights of the
wudows of the son and the grandson, by Vijnanesvaia and

ih) Lollubhai v Mankuvarbhai (1879) 2 Bom., 388, Kesserbai v.

J alab ( 1880) 4 Bom , 188, 208

(z) Kesserbai v Valab (1880) 4 Bom, 188, 208; Russoobai v.
Zoolekhabai (1895) 19 Bom, 707, Rakmabai v Tukaram (1887) 11
Bom , 47

(/) Ramasann \ Narasamma (1885) 8 Mad, 133, Man v.

(.hmnammal (1885) 8 Mad., 107, Kuinara Velu v Viranna (1879)
5 Mad, 29, Miittammal v. I engalakshnn (1882) 5 Mad, 32, Seethai
V. Nachiar (1914) 37 Mad, 286; Navaneethakrishna v Collector of
Tinnevelly (1935) 69 M L.J , 632, 668-670 , Rama Nand v. Surgiam (1894)
16 All, 221, Lala Joti v Mt Durani (1864) BLR Sup Vol , 67^
F.B , Tahaldai v Gaya Persha.d (1910) 37 Cal, 214, Sundar Mam v.
Gokulanand (1913) 19 C.W.N., 160.

PARAS. 512-513.] THREE DIVISIONS OF HEIRS.

627

Mitramisra who declare the great-grandmother to be an
heir, though not mentioned in any text, by Nilakantha who
brings in the sister as a near sapinda even before paternal
grandfather and by the Subodhini as well as the courts which
have recognised the other lineal female ancestors as heirs,
though not mentioned in any text or in the Mitakshara. The
clear and unifoim recognition in Madras of the rights of
female bandhus and the anomalous exclusion of female
sagotia sapindas only on the ground that their order is
difficult to fix, are against the rule of general incapacity of
women to inherit (/c). The Mitakshaia and all the authori-
ties following It establish that the teim '‘goUaja sapindas"
includes wives of sapindas as well as sapindas. The
only question is whether the order of succession is fixed in
the Mitakshara in such a way as to leave no room for wives
of sapindas, unman led daughters of sapindas and female
bandhus. All the Sanskrit lawyers, however, recognised in
connection with the succession to the propeity of a male
a general preference of males over females. Accordingly, as
it is quite clear from Mit., II, v, 6 and Viiamit., Ill, vii, 4
that samanodakas succeed only in default of samanagotra
sapindas, there is nothing in Mit., II, v, 5 to prevent female
sapindas coming in after the male sapindas. Similarly there
is nothing to pievent female bandhus coming in after the
male bandhus in each class of bandhus.

§ 512-A. The principle of incapacity to inherit by reason
of certain personal disqualifications or defects is recognised
by Hindu law in both the schools. But in the Mitakshara
school, this principle has been almost abrogated by statute
(Ch. XV).

It is now settled in the Mitakshara school that Obligation of
the obligation of chastity is only imposed on the widow and
does not disqualify either the daughter, mother or any other
woman who takes as heir (A;^).

§ 513. The heirs according to the Mitakshara law fall
into three divisions: (I) Samanagotra or sagotia sapindas, Three divi-
(II) Samanodakas, and (III) Bhinnagotra sapindas or heirs.

(At) Navaneetha Krishna v. The Collector of Tinnevelly (1935)

69 M.L.J., 632, 668-670.

(Aci) Advyapa v Rudrava (1880) 4 Bom., 104 (daughter) ; Kojiyadu
V. Lakshmi (1882) 5 Mad, 149 (mother); Ganga v. Ghasita (1879)

1 All , 46 F.B. (daughter) ; Vedarnmal v. Vedanavaga (1908) 31 Mad.,

100 (mother) ; Dal Singh v. Mt. Dim (1910) 32 All., 155 (mother) ;

Baldeo v. Mathura (1911) 33 All., 702 (mother) ; Tara v. Krishna
(1907 ) 31 Bom., 495; Annapurnamma v. Venkamma (1926) 51 M.L.J.,

387 (daughter) ; Ram Pergash v. Mt. Dahan (1924) 3 Pat., 152
(daughter). It is otherwise now under the new Act, §593.

628

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

bandhus(/). The first two divisions are comprehensively
known as gotrajas (m). The explanation of sapinda relation
as well as the limitation of degrees have been ahead) fully
explained in the Chapter on Marriage (n),

Sago^a Sagotra sapindas are (1) a man’s six descendants in

** * the male line, his six ancestors in the male line with himself

as the seventh, (2) descendants in the male line within the
seventh degree reckoned from and inclusive of each of the
six paternal ancestors, (3) the wives of all these male
sapindas, and (4) daughters of the sapindas before their
marriage if they are within the seventh degree (§510). All
these relations are one’s sapindas (Table A).

Except the widows of the deceased and of his predeceased
son and grandson and his lineal female ancestors, the
other female sapindas are not hens except in Bombay

Samanodakas. § 5]^4 second division of heirs consists of sama-

nodakas. They are ( 1 ) all the descendants in the male
line from the eighth to the fourteenth degree from and
including the propositus, (2) all his ancestois in the male
line from the eighth to the fourteenth degree; (3) all the
descendants in the male line from the eighth to the fourteenth
degree reckoned from and inclusive of each of the hist six
paternal ancestors of the piopositus, and (4) all descendants
in the male line within the fourteenth degree of his eighth to
the fourteenth paternal ancevStors (Table A). While sapindas
are only six degrees in ascent or descent exclusive of the man
himself or six degrees in the collateral lines exclusive of his
ancestor from whom the line divides, the samanodakas extend
to seven degiees from the eighth to the fourteenth, the leason
for the distinction is not clear. It is now settled b\ the
decision of the Judicial Committee that the samanodaka
relationship does nut extend beyond the fourteenth degiee (o).
The decision does not in terms overrule the dec ision of the

(/) Atmaram Abhimanji v Baji Rao (1935) 62 I A, 139 AIR.
1935 PC, 57.

(m) Mit , II, VI, 1, according to the Vyavahara Mayukha, the
term *gotraja’ includes those women born in the family but transferred
by marriage into another gotra V May , IV, vjii. 18*20

(re) See ante §§ 107*116.

(<?) (1935) 62 LA, 139, A.I.R 1935 PC, 57 supra, approving
Rama Rao v. Kuttiya (1917) 40 Mad, 654, 659 and overruling Ram
Baran v. Kamla Prasad (1910) 32 All, 594; see also Mahabir Singh
V. Mt. Radha (1933) 8 Luck., 646, A.I.R. 1933 Oudh, 231.

TABLE A.

SAGOTRAS (SAPINDAS AND SAMANODAKAS).

{accoiding to the Mitakshara Law)

628.A.

13

(71 )

1

S 1— to 13

( 192—204)

12

1

(70)

S 1— to -S 13

( 179—191 )

1

11

1 '

(69)

— S 1— to— S 13

( 166—178 )

10

1

(68)

S 1— to -S 13

(153—165)

1

9

1

(67)

- S 1— to— S 13

(140—152)

1

8

1

(66)

S 1 — S 13

(127—139)

1

7

(65)

S 1— to -S 13

(114—126)

(41) Great-Grandmother of (18)- (I')) Great-Gi and fatlier of (18)

M9) (.landmotlier of (18)

( 34 ) Mother of ( 18 )

(17) (»reat giaiuliiK/ hei
(12) (^randniollier
( 7 ) Alotlu i
(4) Widow

-(40) (grandfather of (18)
- (d*)) Father of ( 18)

= (jreat-grandfalher US)

j ~

— (,randfathei (13)

1

Father ( 8 )

^ ( 36 )

I

s (37 )

1 I

(rrandnncle (19) S (38)

1

-- Ow ner

I

Sister

(130

Uncle (14)

!

Brother ( 9 ) S ( 15 )

I

I . I , '

i*)) Dau{;litei Widow -Son II) Sister s Son

I (4A) 1_ (HD)

I , I III

Daujshter’s (laughter Daughter’s non Widow -(rrandson Son’s daughter S ( 11 )
(13B) (6) (4B) 1 (2) (13A) |

Nephew ( 10 ) S ( 16 )

(/r(:at-grandson (3)

i

S (22)

I

S (23)

I

S (24)

I

S

I

s

s (25)

I

S (26)

i

S (27)

S (28)
S (29)

I

S (30)

I

S '

S (20)

!

S (21)

S (31)

1

S (32)

1

S (33)

I

S ,

I

S I
^ / •-

s

I

S ) 72-78 S

I

S

j

s

/ 79 85 j

I

S (49)
S (50)
1

S (51)

S(46)

I I

S(41) S(47)

I

S(42)

I

S(43)

1

S(52)

I

S (53)

I

S (54)

S (48)

I

S (55)
S (56)
S (57)

I

58 64

I

S

l 1

} 86-92 S

I

s

I V '

s ) 93-99 S

I

S

I

100-106 S

I

s

107-113

S

Sagotra Sapindas

(1 to 4B, 7 to 57 )
Samanodakas
Bandhiis

57

147

6

210

The niimerah afjixed to the sapindas (Nos I — 57) indicate their respei tive places m the order of suitession Nos 5, 6, ISA th ISD
arc not sagotra sapindas but their rank is fixed by express texts or by statute Nos 4A and 4B are the new female heirs

For the Mayukha order of heirs, see §§554-557

The order amongst Samanodakas (Nos 58-204), being of little practical importance, is not marked.

PARAS. 514-515.] TEXT RELATING TO BANDHUS.

629

Bombay High Court in Bai Devkore v. Amrit Ram (p) that
samanodakas included all agnates without any limit of
degree. That was a case from Guzerat governed by the
Mayukha. Nilakantha merely cites the text of Manu and
does not appear to lay down any positive rule and it is im-
probable that he intended to postpone indefinitely cognates
whom he favoured even more than the Mitakshara to all
agnates without any limit of degree. He does not refer to
the text of Brihat Manu quoted in the Mitakshara and this
is certainly an instance in which the Mayukha and the
Mitakshara should be construed together so as to set a limit
of fourteen degrees (p^).

^ 515 The third division of heiis consists of bandhus Bandhus.
(Table B). They are the sapindas related through a female,
being within five degrees from and inclusive of the common
ancestor, in the line or lines in which a female or females
intervene 111-116 j . In the portion of his work relating
to succes'^ion, Vijnanesvara styles them as sapindas of a differ-
ent gotra The term ‘bandhu’ has therefore acquired in the
system of the Mitakshara a distinctive and technical meaning
and signifies bhinnagotra sapindas (q). They are of three
classes: (1) atmabandhus or one's own bandhus, (2)
pitrubandhus or the father’s bandhus and (3) rnatrubandhus
or the mother’s bandhus. The relevant passage in the
Mitakshara is as follows: — “Cognates are of three kinds:
related to the person himself, to his father, or to his mother,
as is declared by the following text. The sons of his own
father’s sister, the sons of his own mother’s sister, and the
sons of his own maternal uncle must be considered as his
own cognate kindred. The sons of his father’s paternal aunt,
the sons of his fathei’s maternal aunt, and the sons of his
father’s maternal uncle, must be deemed his father’s cognate
kindred. The sons of his mother’s paternal aunt, the sons of
his mother s maternal aunt, and the sons of his mother’s
maternal unc le, must be reckoned his mother’s cognate

(/>) (1886) 10 Bom. 372.

Gojabai v Shahajirao (1892) 17 Bom, 114, 118; Kesserbai
\ Hunsraj (1906) 33 I A, 176, 30 Bom., 431, 442, Bhagwan v.
Warubai (1908) 32 Bom., 310, 312.

iq) Ramchandra v. Vinayak (1915) 41 I. A., 290, 306, 309, 42
Cal , 384 As to when one of two collateral lines consists of the agnate
descendants of the common ancestor, see § 518. The daughters of
one’s sagotra sapindas within six degrees will, on their marriage, be
his bhinnagotra sapindas just as one’s daughter or sister is his bhinna-
gotra sapinda, though not related through a female in the technical
sense. See Jelly, T.L.L., 214, 221.

SUCCESSION UNDER MITAKSHARA lAW. [CHAP. XII,

Enumeration

only

illustrative.

kindred (q^). Here, by reason of near affinity, the cognate
kindred of the deceased himself, are his successors in the
first instance; on failure of them, his father’s cognate kindred;
or if there be none, his mother’s cognate kindred. This must
be understood to be the order of succession here intended” (r).

S 516. Evidently the enumeration of the above nine
bandhus was not intended to be exhaustive, and is only
illustrative. When defining sapinda, Vijnanesvara says, “So
also is the nephew a sapinda relation of his maternal aunts
and uncles and the rest, because particles of the same body
(the maternal grandfather) have entered into his and theirs;
likewise does he stand in sapinda relationship with paternal
uncles and aunts and the rest” (s). In the light of this, his
definition of bandhus or bhinnagotra sapindas makes it clear
that maternal aunts and uncles and their descendants as well
as pateinal aunts and their descendants are bandhus and
that his enumeration is purely illustrative. Visvarupa and
Mitra Misra in his Viramitrodaya recognised this by includ-
ing the maternal uncle and the like in the term ‘bandhu’
purely by way of illustration. Referring to the maternal
uncle’s sons, the Viramitrodaya says that it would be ex-
tremely improper that then sons are heirs but they
themselves though nearer, are not heirs (0- After some
fluctuation of opinion, it was finally settled that the
enumeration of bandhus in the Milakshara is not exhaustive
but illustrative only (u). Accordingly, in addition to the
nine bandhus named m the Mitakshara, the following rela-
tions have been held to be bandhus : father’s maternal
uncle (v), maternal uncle («;), sister’s son including step-

( ) This IS the correct translation of the text as given in the
original (1810) translation by Mr. Colebrooke. By some mispiint.
It IS incorrectly given in Stokes, H.L.B., p. 448. See 2 W., MacN.,
96. Smritichandrika. XT, v, 14, Amnta v. Lakhinarayan (1868) 2
Beng. L R , F.B., 28, 37.

(r) Mit, II, VI, 1-2.

( 5 ) Mit., Vidyarnava’s trans., p. 94.

(f) Viramit., Ill, vii, 5, Setliir’s ed , 424.

(a) Girdhari ImU v The Govt of Bengal (1868) 12 M.I.A , 448;
Muthusami v. Muthukumaraswami (1896) 23 I.A., 83, 19 Mad., 405;
Vedachela v Subramama (1921) 48 I.A., 349, 44 Mad., 753, 762;
Adit Narain v. Mahabir Pershad (1921) 48 I.A , 86, 6 Pat. L.J., 140;
Amnta v. Lakhi Narayan (1868) 2 Beng. L.R., F B., 28.

(v) No. ^l^Gtrdhan Lall V The Govt, of Bengal (1868) 12
448. The numbers given to bandhus refer to the numbers in Table B
and Appx. II.

{w) No. 22, (1868) 12 M I.A., 448 supra; Muthuswami v. Simam*
hedu Muthukumaraswami (1896) 23 I.A., 83, 19 Mad , 405; Vedachala
V. Subramama (1921) 48 I. A., 349, 44 Mad., 753.

PARA. 516 .] BAJSDHUS RECOGNISED AS HEIRS.

.lister’s son (:x:), brother’s daughtei’s son (y), sister’s
daughter’s son (z), maternal grandfather’s brother’s grand-
son (a), mothei’s maternal uncle’s son’s son ih), daughter’s
son’s son (c) , father’s paternal aunt’s son’s son (d) , great-great-
grandfather’s son’s son’s daughter’s son (e), mateinal grand-
father!/), mother’s maternal uncle’s daughter’s son (g),
paternal aunt’s daughter’s son (A), sister’s son’s son (0,
daughter’s daughter’s son (/), maternal aunt’s son’s son (k),
father’s paternal uncle’s daughter’s son (Z), paternal uncle’s
daughter’s son (m), paternal aunt’s son’s son (w), paternal
aunt’s son’s daughter’s son (o), mother’s paternal uncle’s

(r) No F in Table B, Amrita v Lahhinarayan (1868)
2 BLR, 28 FB , Gunesh (.hander v Nilkomul 22 W R., 264, Cheli-
kani V lemaUi !1871) 6 M H C R , 278, Srinivasa v Rangasami
(1879) 2 Mad, 304, Lahshmanammal \ Thiruvengada (1882) 5 Mad.,
241, Subbaraya v Kailasa (1892) 15 Mad, 300 (stepsister's son);
Naraini Knar v ('handi Dm (1887) 9 All, 467; Raghunath v Miinnan
Mi^r (1898) 20 All, 191, Kuppal Naicker v. Lakshmi Ammal A.I R ,
1937, Mad., SoSr.

(>) No 11, Mt Doojga Bibee v Janki (1873) 10 Beng L R., 341.

iz) No 13, Vmaid Bahadur v Udoirhand (1881) 6 Cal, 119 FB.;
hmashanhar v Nagestiari (1918) 3 PLJ, 663 FB ; Sham Dei v.
Birbadra Prasad (1921) 43 All, 463

(а) No 174, Pudmahuman \ The (^ourt of Wards (1881) 8 I A.,
529, 8 (-al, 302

(б) No 178, Ratnasubbu v Ponnappa (1882) 5 Mad, 69

(r) No 2, Krishnayya \ Pitihamma (1888) 11 Mad, 287» Sheo-
harat v. Bhagwatiprasad (1895) 17 All, 523, Thirumalachariar v.
Andalammal (1907) 30 Mad, 406.

<d) No 56, (1896) 23 I A, 83, 89, 19 Mad, 405, Sethurania v.
Ponnammal (1889) 12 Mad, 155, (Mimanlal v. Ganesh (1904) 28
Bom , 453

(e) No 91 (& No 218), Mamk (Aland \. Jagat Settani (1890) 17
Cal 518.

(/) No. 21, Chinnarnmal v Venkatachela (1892) 15 Mad., 421.
ig) No 179, Baba Lai v Nanku Ram (1895) 22 Cal, 339.

(h) No 30, Parot Bapalal v. Mehta Harilal (1895) 19 Bom, 631;
Venkatagiri v (A and r a (1900) 23 Mad, 123, Krishna v V enkatarama
(1909 ) 29 Mad, 115

ii) No 12, Balnsami v Narayana (1897 ) 20 Mad, 342.

(y) No 3, Tirunialachari v Andalammal (1907) 30 Mad., 405;
Ajudhia V Ram Sumer (1909) 31 All 454, Ramphalv Pan Mati (1910)
32 All, 640, Kalimuthu v Ammamuthn (1934) 58 Mad., 238.

(A') No 31, Bai Vijli v Bai Prabalakshmi (1907) 9 Bom. L R ,

1129, Adit Karayan \ Mahabir Prasad (1921) 48 l.A , 86, 6 PLJ.,

140.

(/) No. 55, Paramanandas v. Parbhudas (1912) 14 Bom. L R.,
630, Ram Sia v Bua (1925) 47 All., 10.

‘ im) No. 26, Tirath Ram v Mt Kahan Devi (1920) 1 Lah., 588.

(/i) No. 29, Harihar v. Ram Daur (1925) 47 All, 172.

(o) No. 38 (& No 206), Kesar Singh v. Secretary of State (1926)
49 Mad., 652, 680, but see Gajadhar v Gaun Shankar (1932) 54
All., 698 F B.

1631

632

THE RULE OF MUTUALITY.

[chap. X14

Mutuality of
Sapindadiip.

grandson’s son (p), mother’s paternal aunt’s son and his-
son iq) and the granduncle’s son’s daughter’s son (r).
In Madras and Bombay female bandhus have also been held
to be heritable bandhus and entitled to inherit 508, 509).

§ 517. It is well settled that in order to entitle a man
to succeed to the inheritance of another he must be so related
to the latter that they are sapindas of each other (s) . This rule
of mutuality has been lested {t) upon the text of Manu, IX, 187
“which has been translated differently by different writers but
which in substance amounts to this, that the estate of a
deceased goes to his nearest sapinda” (tt). The interpretation
of Manu’s text by Visvesvarabhatta and Balambhatta is:
“The property of a near sapinda shall be that of a near
sapinda” (v). This rule, while it is expressive of mutuality,
does not at all mean that there can be cases in which A can
be a sapinda of B without B being a sapinda of A, as has
sometimes been supposed. In Hindu law, the term sapinda is
itself a term of correlation. In the words of the Mitakshara,
“sapinda relationship arises between two people through their
being connected by particles of one body”. “Wherever the
word sapinda is used there exists between the persons to whom
it is applied a connection with one body either immediate or
by descent” ( n; ) . Therefore it necessarily implies in all cases

ip) No. 182. Chengiah v. Suhbaroya (1930) 58 562.

iq) Nos. 171, 176, (1921) 48 I.A , 86 supra, (1930) 58 M.L.J., 562
supra,

(r) No. 62, Naranjan v. Bakhtawar (1938) 40 P.L.R., 37.

(s) Ramchandra Martand v. Vinayak (1914) 41 I.A., 290, 311»
312, 42 Cal., 384, Adit Narayan v. Mahabir Prasad (1921) 48 LA., 86,.
95, 6 P.L.J , 140, Umaid Bahadur v. Vdoi Chand (1881) 6 Cal., 119;
Babu Lai v. Nanku Ram (1895) 22 Cal., 339; Kesar Singh v. Secy,
of State (1926) 49 Mad, 652; Gajadhar v. Gauri Shankar (1932)
54 All. 698 F.B.

it) (1895) 22 Cal., 339, 345, 346, supra; (1914) 41 I.A., 290,
312, supra.

(a) Buddha Singh \ Laltu Singh (1915) 42 I.A., 208, 217, 37
AIL, 604.

(r) Madanaparijata, Calcutta edn., 673; Balambhatti, Setlur’b edn.,
773; Ramchandra Martand y. Vinayak (1914) 41 I.A., 290, 312, 42 Cal.,
384; Babu Lai v. Nanku Ram (1895) 22 Cal., 339, 346; Sarvadhikari,
2nd edn., 443, 444. While as stated in Umaid Bahadur v. Udoi Chand
(1881) 6 Cal , 119, 127, the word ‘sapinda* in the text of Manu, IX,
187, must be understood as connection by consanguinity as opposed to
connection by pinda offerings, it cannot mean seven degrees in that
text; It IS limited to three degrees by IX, 186 and has been so limited
by the Viramitrodaya which explains that the sagotra sapindas beyond
the three degrees, the samanodakas and the three classes of bandhua
are included in the term *sakulya* in the text of Manu. Viramit., Ill,
vii, 4; Setlur, II, 424. See also Dr. Buhler*s note to Manu, IX, 187
and ante § 476.

iw) Mit. on Yajn., I, 52. Vidyarnava*s trans., 94. See ante § 108^

PARAS. 517 - 518 .] MUTUAUTY AMONGST BANDHUS.

638

mutuality in the Mitakshara system as Balambhatta in his
gloss on the Mitakshara on Marriage fully explains (a;) .
If A IS connected with B by particles of one body,
it IS impossible to conceive how B is not similarly
connected with A The text of Manu therefore ex-
presses only that which is implicit in all sapinda lelation-
ship; it merely states the rule of propinquity upon which is
based the right of collaterals to succeed to the estate of
a deceased person (y). Accordingly the Mitakshara applies
it merely as a rule of propinquity and that without exception
to samanodakas and bandhus (z|

§ 518. It IS admitted that amongst agnates, the lelation-
ship of sapindas is always mutual and so it must be among
samanodakas But it is said that among cognates, the
relationship is not mutual in a few cases (a) ; that sapinda
relationship extends to the seventh degree in the father's line
but only to the fifth degree in the mother’s line and that
therefore A may sometimes be a sapinda of B without B
being a sapinda of A (6). This is contrary to the necessary
impoit of the word ‘sapinda’ as explained in the previous
paragraph As bandhus must first be sapindas, though of a
different gotra, there will be without exception the mutuality
of sapinda relationship amongst all bandhus.

The father’s line is the line of the father *s lineal male
ancestors [b^) , and wheie the assumption of seven degrees as the

(jc) Balambhatti (Gharpuie'b edn ), page 194, see article h> Prof.
K V Venkardsubramaniam 31 M L W , 9, at 16, see ante §114

(>) Buddha Singh v Laltu Singh (1915) 42 1 A . 208, 217, 37 All,
604

( 2 ) Mil, 11, 3, 4 Tlie Vyavdliara MdvuUia applies it abo in tho
topi( of stridhana, V May , IV, \, 28.

(rt) Bhdttaclidiya, 11 L, 2nd edn, 459, cited in Rarnrhandra 1/nr-
tand V. Vinayak (1914) 41 LA, 290, 311, 42 Cal, 384, 419

(h) Sarvadhikari, 2nd edn, 572 573.

( The woids “seventh from the father” in Yajn , I. 53, have
been clearly interpreted by the Mitakshara. “In the same way,
beginning from the father and counting his father etc , till the line
reaches the seventh ancestor is the meaning of the phrase, seventh
from the father” It is in that father’s line [so defined], after the
seventh ancestor, the sapinda relationship ceases. The mother’s line
is similarly defined. “Beginning from the mother and counting her
father, and grandfather, etc., till the fifth ancestor is reached” and
It is in that mother’s line [so defined! after the fifth ancestor, the
sapinda relationship ceases, Vidyarnava’s trans., 109-110 §§ 110, 113.

Mutuality

among

Bandhus.

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XU,

^4

limit of sapinda relationship in one of the
two collateral lines, for example, the
father’s line is correct, both A and B are
I necessarily sapindas of each other. In the
marginal diagram S® is an agnate sapinda,
S 2 and B is a cognate sapinda, of the common
^1^ ancestor. Both are therefore bhinnagotra
I sapindas of each other. In Bahu Lai v.
B Nanku Ram (c), collateral descendants
within the fifth degree, reckoned from and
inclusive of any of the three maternal
ancestors, beginning with the mother’s
father were alone assumed to be a man’s
sapindas. But the sixth agnate descendant of the maternal
grandfather is the latter’s sapinda and must therefore he a
sapinda of his daughter’s son who is only ihe second in
descent {d) . The view that in such a case the bandhu rela-
tionship should be limited to the fourth agnate descendant of
the common ancestor is to ignore the sapinda limit in that
line and cannot be supported as the relationship between the
propositus and the claimant in the two lines is only through
their common ancestor. The assumption, however, that a
father’s line extends, in the Mitakshara scheme of sapinda
relationship, where a female intervenes, to seven degrees is
incorrect (e). For according to the Mitakshara as has already
been explained (/) the correct rule for all bhinnagotra
sapindas, whether they are related through the mother or
through the father, is that the sapinda relationship ceases with
the fifth degree. It is immaterial whether the relationship is
traced through one’s own mother or father’s mother or grand-
father’s mother or contrariwise through one’s daughter, son’s
daughter or grandson’s daughter.

I

SI

I

I

53

I

54

I

I

s«

(c) (1895) 22 Cal., 339.

id) See group 5 m 22 Cal., 339, 345 supra, where there is no
discussion; but see Sarvadhikari, 2n(l edn., 599.

(e) Though according to the Dayabhaga School the prohibited
degrees for the purpose of marriage extend to relations through the
father’s mother upto seven degrees, they are not sapindas of the pro-
positus and are not entitled to inherit. § 490. See ante § 117, see
Rule 1 (b) in Banerjee, M & S, 5th edn., 67.

(/) See ante § 110-116.

PARAS. 518-519.] LIMITATION OF BANDHU RELATION.

635

With reference to the marginal diagiam, it is said that
S® on the right being seventh in degree would be sapinda
of on the left; but that counting from
who claims through his mother D, S ^'s
sapindaship would terminate with on
the right and therefore there is no mutual-
ity between and S“ (g). This view
seems erroneous. In the first place,
on the right and the common
ancestor A are admittedly not sapindas of
each other. How then, in the first premiss,
can S’* be taken to be a sapinda of S“ on
the left? Not certainly in the Mitakshaia
sense nor according to the Mitakshara com-
putation. The fallacy appears to consist
in assuming that S * is in the father’s line of S“ on the left and
that seven degrees are therefore to be computed from A
In the first place, S'* is not in the father’s line of S^ (on the
left). In the second place, the limitation of seven degrees is
as mentioned by Vijnanesvaia m connection with the father’s
agnatic line (h) and applies only to sagotra sapindas ii).
And the erior is due to taking the words “from the
father” and “fiom the mother” in different and mutually in-
consistent senses on each of the occasions. The process of
first extending the line of hJunnagotia sapindas through the
father to seven degrees and then cutting it down to five
-degrees is certainly not consistent with the Mitakshaia.

^ 519. As has already been explained, the five degiees
in the mother’s line must be understood to refer to all
bhinnagotras, in the line in which a female or females inter-
vene, the term ^mothei’ indicating a female, as Balambhalta
says. This limitation has been laid down by the Privy
Council in Ramchandra Martand v. Vinayak and Adit Narain
V. Mahabir Prasad, In the former case, the plaintiffs claim-
ing the succession were the owner Laxman Rao’s paternal
grandfather’s son’s son’s daughter’s daughter’s sons and
they were held not to be his bhinnagotra sapindas, though
they were within seven degrees from Laxman Rao’s paternal

SI

1

SI

I

Si2

I

53

I

54

I

D

I

55

(g) Gajadhar v. Gauri bhankar (1932) 54 All., 698, 723 per
Mukerji, J.

(A) See ante §§ 107-116 Similar objections apply to the diagram
in Dr. J. N Bhattacharya’s H. L , 2nd edn , 259, where S'^ is not a
sapinda of the common ancestor at all.

(i) Ramchandra v. Vinayak (1914) 41 I.A., 290, 307-308, 42 Cal,
384.

636

THREE CLASSES OF BANDHLS. [CHAP. XII,

grandfather (;). It is therefore a decisive authority against
the view that the line, where a female intervenes, can be
extended to seven degrees even with reference to the agnate
descendants of the common ancestor (A). The simple test
in all cases therefore is whether the claimant and the pro-
positus are each of them bandhus of the common ancestor
or whether one of them is a bandhu and the other, either
a bandhu or an agnate sapinda of the common ancestor.

On the basis of the rule of five degrees as applicable to
all bhinnagotra sapindas tracing descent from a common
male ancestor in the line where one or more females intervene,
there will be mutuality in all cases without exception just
as in the case of sagotra sapindas.

Bandhus, § 520. There can be no doubt that the Mitakshara

®^ly®f^hree intended, as Mitter, J., thought m Amrita Kumaii v. Lakhi
Narain, to establish the threefold classification of’ bandhus (A:').
In Ramchandra Martand v. Vinayak, the question whether
the classes can be added to was raised but was left open by
the Privy Council (/). The preponderance of authority is in.
favour of the view that there are only three classes, namely,
atmabandhus. pitrubandhus and matrubandhus (m) , Vijna-
nesvara says not only that cognates are of three kinds but he
states the order of succession only as regards the three. He

{]) (1914) 41 I.A, 290, 312, “The plaintifib are hib (Laxman
Rao’s) bhinnagotras beyond the fifth degree,” (1921) 48 I.A., 86,
6 P L.J., 140; Brij Mohan v. Kishun Lull A 1 B , 1938 All , 443

(A) See ante § 113 Balambhatta’s comment on the term ‘mother’
IS fully supported by the comment of the Mitakshara on Yajnavalkya’s
text on impurity, (Mit , on Yajn , III, 24; II, 135; Naraharayya's trans ,
54, 55, 56), which says that by the use of the {erm niatula (maternal
uncle) are indicated by synecdoche all those related to him by blood
through a. female (yonisambandhas) that IS f atmabandhus, matrubandhus
and pitrubandhus and they have been explained in connection with the
text “the wife, daughters” etc Explaining the text of Gaut (XIV,
20) which uses the term yonisambandha, Vijnanesvara takes it to include
not only a maternal uncle and mother’s sister’s son but also a father’s
sister’s son. (Mit., Setlur's edn., 1170). Dr. Jolly takes the same
view. “The extension of the bandhus to four degrees only is in accord-
ance with the rule that sapindaship in the female line does not extend
beyond four degrees”. T.L.L., 214.

(Ai) (1868) 2 Beng.L.R., 28, 38 F.B.

(/) (1914) 41 I. A., 290, 42 Cal., 384, 416, 417.

(m) Muthuswami v. Muthukumaraswami (1893) 16 Mad., 23, 30,
affirmed in (1896) 23 I.A., 83, 19 Mad., 405, (1868) 2 Beng. L.R., 28
supra; Vedachala v. Subramania (1921) 48 I A., 349, 44 Mad., 753;
Gajadhar v. Gaun Shankar (1935) 54 All., 698, 710, 726 F.B.; Babu
Lai v. Nanku Ram (1895) 22 Cal., 339. Dicta to the contrary in
Umashankar v. Mt, Nageswari (1918) 3 P.L.J., 663, 683, Rami Reddi
Y, Gangi Reddi (1925) 48 Mad., 722 and Kalimuthu v. Ammamuttu
(1935) 58 Mad., 238, 243 are opposed to the Mitakshara.

PARAS. 520-521.] SUCCESSION UNDER MITAKSHARA LAW.

637

recurs to this matter in another connection when dealing with
impurity where again he divides all blood relations through
a female only into the same three classes (n). But this three-
fold classification of bandhus is itself opposed to the assump-
tion that there are bandhus within the limit of live degrees
who are outside the three classes.

For, what the Mitakshara means is that all bandhus are
divisible into the three classes. In Adit Narain v.

Mahahir Prasad, the Privy Council laid down: “Of course

a bandhu must in order to be heritable in a female
line, fall within the fifth degree from the common male

ancestor and must be so related to the deceased person
that they were mutually sapindas of one another, that is
to say, where the Mitakshara applies, persons connected
by particles of one body; but if these conditions are satisfied,
that rule [of class propinquity] takes effect” fo). This

certainly seems to be the simplest and most logical view, one
too that IS fully supported by the Mitakshara and the
Mayukha (p).

§ 521. From the illustrations given of atmabandhus,
pitrubandhus and matrubandhus, the Mitakshara makes it
clear where the dividing line between the three classes is
to be drawn Atmabandhus comprise a man’s own cognate
descendants, his father’s cognate descendants, his grand-
father’s cognate descendants, and his maternal grandfather and
his descendants The upward limits so far as atmabandhus are
concerned are therefore the father’s father and the maternal
grandfather Since the pitjubandhiis are illustrated in the
Mitakshara by the great-grandfather’s cognate descendant
[No. 52] and the father’s maternal giandfather’s descendants
[Nos. 53 and 51], the great-grandfather and the fathei’s
maternal grandfather [No. 50] form the lower limits of that
class But the upper limits of that class are (1) the great-
grandfather of the great-grandfather in the agnatic line, (2)
paternal grandfather’s maternal grandfather [No. 79], (3)
father’s maternal grandfather’s father [No. 106] and (4)
fathei’s maternal grandmother’s father [No. 107]. Similarly
matrubandhus are represented in the Mitakshara by the
descendants [Nos. 171, 172, 173] of the maternal grand-

(n) Mit. on Ydjn., Ill, 24 (Setlur’s edn., 1170) ; Naraharayya’s
trans , 54-56.

(o) 48 I A., 86, 95, 25 C.W N., 842, 40 M.L.J., 270 citing Ram
Chandra's case (1914) 41 I. A., 290, 309, 42 Cal., 384. See also Ram
Parshad v. Ida Mai (1931) 134 I.C., 122(1).

(p) V. May., IV, viii, 23.

The limits of
the three
classes.

638

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII

Dr. Sarvadhi-
kari’s view
discussed.

father’s father [No. 166] and the maternal grandmother’s
father [No. 167] who form the lower limits of that class
The upper limits are (1) maternal grandfather’s paternal
grandfather [No. 202], (2) maternal grandfather’s maternal
grandfather [No. 203], and (3) maternal grandmother’s
paternal and maternal grandfathers [Nos. 234 and 235, the
numbers refer to Table B].

§ 522. Dr. Sarvadhikari would restrict the heritable
bandhus (1) to the owner’s descending line, (2) to the
owner’s father’s family, (3) to the owner’s maternal grand-
father’s line, (4) to the father’s maternal grandfather’s line,
and (5) to the mothei’s maternal grandfather’s line (^).

This proceeds upon his central assumption that
Vriddha Satatapa’s classification cannot be accepted (r),
that bandhus who according to that text would be pitru-
bandhus and matrubandhus should be classed as atma-
bandhus (5), and that that text though approved by the
Mitakshara should be lead with certain additional words and
retranslated in a way quite different from what it is it) . Cognate
descendants of the owner’s great-grandfathei and descendants
of the maternal grandfather’s father are accoiding to him
atmabandhus (w). These are undoubtedly pUru bandhus and
matrubandhus respectively according to the Mitakshara and
the contrary view of Dr. Sarvadhikari is opposed to all
the Mitakshara authorities and to the decisions of the Privy
Council and of Courts in India (v).

{q) Sarvadhikari 2nd edn., 591-2, Kesarsingh v. Secy, of State
(1926 ) 49 Mad., 652, 684, 685; Gajadhar v. Gaun Shankar (1935) 54
AIL, 698. 701 F.B.

(r) Sarvadhikari, 2nd edn, 625, 626.

(5) Ibid, 627; see note (v) infra.

(0 Ibid, 629. Dr. SarvadhikarPs tables were not accepted in Veda-
chela v. Subramama (1921) 48 I.A., 349, 364, 44 Mad., 753. His^
conclusions were not accepted by the Court in Kemr Singh v. Secy,
of State (1926) 49 Mad., 652. His classification was not accepted hy
Sulaiman, J., in Gajadhar v. Gourishankar (1932) 54 All, 698, 707,
708. F.B.

(u) Sarvadhikari, 2nd edn., 606-a, 606-b.

iv) Muihuswami v. Muthukumaraswami (1896) 23 I. A., 83, 19“
Mad., 405 affg. 16 Mad., 23; Adit Narain v. Mahabeer Prasad
(1921) 48 LA., 86 (mother’s paternal aunt’s son, atmabandhu)

approving Krishna v. Venkatarama (1906) 29 Mad., 115 and Bai Vijli
V. Bai Prabha Lakshtni (1907 ) 9 Bom. L.R., 1129. See also Sarvadhi-
kari, 2nd edn., 609. Father’s paternal aunt’s sons and a mother’s
maternal and paternal aunt’s sons who are undoubtedly pitrubandhus
and matrubandhus are atmabandhus according to Dr. Sarvadfukari.

PARAS. 522-523.] HERITABLE BANDHUS.

6S9

Neither the text of Vriddha Sdtatapa classifying the
bandhus nor the Mitakshara adopting it makes any distinction
between bandhus for marriage and impurity and bandhus for
the purpose of succession, in other woids, heritable bandhus
as is quite evident from the comment of the Mitakshara on
Yajn , III, 24. The only possible diffeience is between male
and female bandhus which is expressed cithei in excluding
or in postponing the latter.

§ 523. In Kesar Singh v. Secretaiy of State, the Madras Kesar Singh
High Court after a full examination of the authorities held that v Secretary
a father’s sister’s son’s daughtei’s son was a hei liable bandhu
and refused to accept Dr. SarvadhikaiTs theory that heiitable
bandhus aie limited to paiticular lines or to paiticulai
families, even though they weie within the prescribed degiees
of kindred, as that theory derived no support fiorn the texts
and commentaries (w).

In Urnaid ^Bahadur v. JJdoi Chand, wheie it was held that JJmaid
a sister’s daughter’s son was an heir and that a bandhu must Bahadur
be an atmabandhu, pitj uband/iu or niatrubandhii, there is
an obiter dictum that a sistei’s daughter’s son's son will not
be a heiitable bandhu (.x). He would be an atmabandhu
according to the Mitakshara. In the
marginal diagram, F would be an atma-
bandhu of B and B would be a pitrubandhu
of F. But It was supposed, probably rely-
ing upon Dr Sarvadhikari’s theory
which was not refeired to and which
was based on an altogether different
classification that B would not be an
atmabandhu or pitrubandhu or matru-
bandhu of F, though they were within the
prescribed degrees. No reasons are given in that judgment.

A man and his sister’s daughter’s son’s son are undoubtedly
related as bhinnagotia sapindas

In Babu Lai v. Nanku Ram, the Court rightly held that BabuLalr.
the plaintiffs who were w ithm five degrees were bandhus, Ram.

that sapindaship must be mutual and that a bandhu must
either be an atmabandhu, pitrubandhu oi rnatrubandhu {y) .

B (s)

I

C (d)

I

D (d)

I

E (O

I

F (b)

(w) (1926) 49 Mad, 652.

(x) (1881) 6 Cal, 119, 128 F B.

(y) (1895) 22 Cal, 339, 345, 346. The groups given in this case
are not exhaustive of sapindas and appear to be inaccurate. It includes
cognate descendants to the seventh degree from the six paternal
ancestors which is contrary to the Mitakshara and to the decision of
the Privy Council in Ramchandra Martand v Vinayak (1914) 41 I.A ,

64a

Allahabad
yiew discussed.

HERITABLE BANDHUS. [CHAP. XII,

But the Court observed, “that Ram Saran [in the accompany-
ing diagram] was the third in descent from Mangru Ram,

Mangru Ram

l_

Hardoyal Ram

I

Mt S<inia

_ i

Nanku Ram Chalhan Ram Ram Churn Ram
Plaintiff No. 1 Plaintiff No. 2 Deft No 2

who was the plaintiff’s maternal great-grandfather, and so
he was their sapinda directly. Thus we find that the plaintiffs
and Ram Saran are mutually related as sapindas, the former
through the mother and the latter directly^\ that is as
an atmabandhu. Ram Saran certainly was not an atma-
handhu of the plaintiffs. He was their matrubandhu because
he was their mother’s paternal aunt’s daughter’s son and the
dictum is clearly opposed to authority iz). The assumptions
made in Umaid Bahadur^ s case (x) and in Babu Lai's case (y)
apparently based on Dr. Saivadhikari’s erroneous classi-
fication are neither correct nor authoritative. Neither a
decision on the point was necessary nor weie any reasons
given.

In Gajadhar v. Gauri Shankar, the question was
discussed at length by the Allahabad High Court, which
differing from the view of the Madras High Court, held that
a father’s sister’s son’s daughter’s son was not a heritable
bandhu (a). That decision rightly held that the three classes
of bandhus in the Mitakshara are exhaustive and cannot be
added to. The learned judges, however, while refusing to
accept Dr. Sarvadhikari’s classification and propositions (b)
arrived at similar results and held that a bandhu though
within five degrees and covered by the rule of mutuality,
cannot be in the father’s mother’s mother’s agnatic line or in

290, 42 Cal., 384. It does not include those who ought to be included,
namely, the descendants of the father’s maternal grandfather as well
as those in the mother’s maternal grandfather’s line and grandfather’s
maternal grandfather’s line.

(z) Muthusami v. Muthukumarasami (18%) 23 I.A., 83, 19 Mad.,
405; Adit Narayans case (1921) 48 I.A., 86; Vedachela's case (1921)
48 LA.. 349.

{a) (1932) 54 All., 698, F.B.

(6) (1932) 54 All., 698, 710, 725, F.B.

Mt. Anandi
Mt. Keolo

I

Ram Saran Ram
(Propositus)

PARA. 523.]

HERITABLE BANDHUS.

641

fthe mother’s mother’s mother’s agnatic line (c). They hold
lhat the words ^pitrubandhus^ and ‘matrubandhus* in the text
rdo not, as a matter of Sanskrit, mean father’s bandhus and
mother’s bandhus, but mean only a person’s bandhus through
the father and through the mother and that the two expres-
sions have different meanings (d). But both these reasons
-are opposed to the authority of the Vyavahara Mayukha
which explicitly reads the terms ^pitrubandhu and
^matrubandhu^ as the equivalents of ‘pituh bandhuh* and
*matuh bandhuK and explains that there is no distinction
between the father’s bandhus and the mother’s bandhus on
the one hand, and one’s bandhus related through
the father and through the mother on the other
and that therefore they are entitled to inherit (e). It says:
*‘What title then can the bandhavas of the father or the
mother of the deceased have to the wealth? . . . the word
bandhavah in its primary sense would apply to those
enumerated as the father’s and mother’s cognate relations, in
the same way as it does to the maternal uncle of the father,
the paternal uncle of the father, and the like. Hence the text
is intelligible only by the acceptation of the enumerated
paternal and maternal bandhus (cognates) as being bandhus
in reference to succession to the property” (/).

It would be an error to suppose that the bandhus of the father
.and of the mother are related to the father and the mother and
not to the owner himself; for the paternal aunt’s son, the
maternal aunt’s son and the maternal uncle’s son are also
related to the father and the mother and they are called
atmabandhus only for the purpose of classification.
Similarly the bandhus of the father and mother can only be
related through their ancestors and are equally the bandhus
of the propositus, for instance, the father’s maternal uncle’s
son, the mothei’s maternal uncle’s son, the maternal
grandfathei’s brothel’s grandson and mother’s paternal
aunt’s son. No distinction of substance can there-
fore be drawn between bandhus of the father and of the
mother and bandhus related through them. They must, of
course, be within five degrees and, amongst them, the
succession will be regulated by the rules relating to class
and individual propinquity.

(r) (1932) 54 All, 698, 713, F.B. supra,

id) (1932) 54 All., 698, 711, 725, 726, F.B The learned judges
admit at p 711 that if the terms pitriibandhus and matnibandhus meant
father’s bandhus and mother’s bandhus, the conclusion would be
^lifferent

(e) Mandlik, 55.

(/) V. May., IV, vin, 23; Mandlik, 82-83.

43

64 ^

HERITABLE BANDHUS.

[chap. X14

Madras view.

Conclusion.

The Full Bench of the Allahabad High Court further
observed (1) that unless the bandhus were so restricted, great-
grandparents would be atmabandhus (g), and (2) that one
would have to count a common ancestor in the fifth degree
from the father or the mother. Neither objection is valid.
Great-grandparents are not and need not be atmabandhus
for the upper limit of the atmabandhus consists of, as already
mentioned (A), the paternal and maternal grandfathers. If
the father’s bandhus are bandhus of the propositus, it would
not follow that all bandhus within five degrees from the father
are also bandhus of the propositus but only such of them as
are within five degrees with reference to him.

Mukerji, J., treats the bandhus named in the text cited by
the Mitakshara not as illustrative of each class of bandhus,
but as the upper limit of the class itself (i). On this line of
reasoning, as the sister’s son, the brother’s daughtei’s son,
the son’s daughter’s son, and the daughter’s son’s son are
omitted in the list, it could equally be maintained that atma-
bandhus should exclude father’s cognate descendants and one’s
own cognate descendants. The instances of atmabandhus^
pitrubandhus and rnatrubandhus taken together only enable
us to mark off the limits which divide the three classes of
bandhus. As they do not, in the case of atmabandhus, give
the lower limit which has to be supplied, they do not give the
upper limits of pitrubandhus and rnatrubandhus which have
also to be understood in accordance with the Mitakshara
definition and limitation of bhinnagotra sapinda relationship.
The Mitakshara emphatically says that the rule of piopinquity
applies in the case of bandhus as amongst sapindas and
samanodakas (/). There is therefore no warrant for the res-
triction of heritable bandhus by imposing any conditions
in addition to the five degrees, mutuality and male sex. As the
Mitakshara says that bhinnagotra sapindaship extends to five
degrees, it can be cut down only on the authority of
established commentaries. The decision of the Madras High
Court’ in Kesar Singh v. Secretary of State, though not all
the reasoning and dicta therein, appears therefore to be correct.

§ 524. All bandhus on the father’s side who are not atma-
bandhus are pitrubandhus and all bandhus on the mother’s

(g) (1932) 54 All., 698, 711, F.B. supra.

(h) See ante § 521.

(i) (1932) 54 AIL, 698, 727, F.B. supra.
(/) Mil., II, iii, 4; II, v, 3.

PARAS. 524-526.]

ORDER OF SUCCESSION.

64i

side who are not atmabandhus are matrubandhus. On this
view, there is no want of mutuality between any two bhin^-
nagotra sapindas who are within the limit of five degrees.
Where these two conditions of five degrees in the female line
and mutuality are satisfied they are, as laid down by the
Judicial Committee in Adit Narain v. Mahabir Prasad^ herit-
able bandhus ij^).

SECTION II.

ORDER OF SUCCESSION.

§ 525. Next as to the Order of Succession under the
Mitakshara law. As already stated, it only applies to pro-
perty held m severalty (5^481). This is, of course, subject
to the exception recently created by statute in favour of the
widow of a coparcener in an undivided family. If the estate
has once vested m any male, he becomes a fresh stock, and on
his death the descent is governed by the law of survivorship or
of inheritance, according as he has left undivided coparceneis
oi not. Where the estate has vested m a female, oi in any
number of females successively, on the death of the last, suc-
cession IS again traced to the last male holdei, except in
certain cases under Bombay law (§§535, 614).

The Hindu Women’s Rights to Property Act, 1937, has Order altered
radically altered the order of succession as it stood before it. by statute.
The old rule that the widow succeeds to a man’s estate in the
absence of male issue has been altered by making the widow
heir to his property along with his son, grandson and great-
grandson where they are in existence. The widows of a
predeceased son and of the predeceased son of a predeceased
son are also entitled to succeed along with the male issue.

The altered rules of succession apply to all cases of succes-
sion, whether governed by the Mitakshara or the Dayabhaga
law. But as the Act is not retrospective and does not apply
to estates descendible to a single heir, it is necessary to state
also the order as it stood before it came into force.

§ 526. Subj’ect to the operation of this Act, the follow- Male issue*
ing rules apply. If a man has become divided from his sons,
and subsequently has one or more sons born, he or they

ip) (1921) 48 lA, 86, 95, 6 P.L.J , 140, Manik Chand v. Jagat
Settani (1890) 17 Cal, 518, 530, where a man and his great-great-
grandfather’s grandson’s daughter’s son were held to be bandhus of
each other. Equally mutuality exists between the sixth agnate des-
cendant and the fourth cognate descendant of a common ancestor,
§518.

644

Take

simulta-

neoualy.

MALE ISSUE TAKE TOGETHER. [CHAP. XII,

lake his property exclusively (A;). If he is undivided
from his sons, his property passes to the whole of his
male issue, which term includes his legitimate sons,
grandsons, and great-grandsons (A;^). If he is undivided
only from some of them, those who remain united with him
take it with those subsequently born. This rule also applies
to his self-acquired property even if the division took place
only after he acquired such property (Z). All of these take
at once as a single heir, either directly or by way of repre-
sentation. Suppose, for instance, a man has had three sons,
and dies leaving his eldest son A, and B, the son of A; two
grandsons, Ci and C2, by his second son, and three great-
grandsons, Di, D2 and Ds, by his third son; A takes for
himself and B, Ci and C2 take for themselves, and Di, D2
and Ds take for themselves, and these three lines all take
at once, and not in succession to each other. The mode in
which they take inter se, and the nature of the interests which
they take in the coparcenary property, have ‘been discussed

ik) Nawal Singh v. Bhagwan (1882) 4 All., 427; Fakirappa v.
Yellappa (1898) 22 Bom., 201; an undivided son takes the father’s
self-acquired property to the exclusion of the divided son. Nana
Tawker v. Ramachandra (1909) 32 Mad., 377; Narasimhan v. Na^a^
simhan (1932) 55 Mad., 577.

ik^) Baudh., I, v, 11, 9; Manu, IX, 137, 185; Mit., I, 1, 3; 11 , 8, 1;
Apararka cited by Sarvadhikari, 2nd edn., 649 cited in Ananda Bibee v.
Nownit Lall (1883) 9 Cal, 315, 320; Daya Bh., Ill, 1, 18, ix, 31-34;
V. May., IV, 4, 20-22; Viramit., p. 154, 11; Vivada Chintamani, 295;
Rutcheputty v. Rajunder (1839) 2 M.I A., 132, 136; Bhyah Ram
V, Bhyah Ugur (1872) 13 M.I.A., 373, 14 W.R.P.C., 1. The

Viramitrodaya points out that the grandsons and the great-grandson
take together with the son as “there is not here an order of succession
following the order of proximity according to birth; but is based on
the authority of the text establishing the equality of the grandson’s
ownership m the grandfather’s property. Even where the father of
the grandson and the father and grandfather of the great-grandson
are alive, the Dayabhaga view is wrong since the capacity to present
funeral oblations is not alone the criterion of the right to heritage
and the fitness for presenting oblations is not wanting in grandsons
too, while their father is alive.” (Viramit., II, 1, 23-a; Setlur’s edn.,
pages 341-342).

(/) Fakirappa v. Yellappa (1898) 22 Bom., 101; Nana Tawker v.
Ramachandra Tawker (1909) 32 Mad. 377 followed on this point in
Narasimhan v. Narasimhan (1932) 55 Mad., 577; Vairavan Chettiar
V. Srinivasachariar (1921) 44 Mad., 499 F.B. In the last case, the deci-
sion that an undivided son takes the separate property of the deceased
by inheritance and not by survivorship is contrary to the rule in the
Mitakshara, for if he took by inheritance he could not exclude
the divided son whose propinquity is equal. Succession by
survivorship applies to all cases of unobstructed inheritance
and inheritance to separate property is unobstructed. See ante
§§ 271-273. Venkateswara Pattar v. Mankayammal (1935) 69 M.L.J.,
410; Murtuza Hussain Khan v. Md, Yasin Ali Khan (1916) 43 LA.,
269, 281.

PARA. 526.] SUCCESSION UNDER THE MITAKSHARA LAW.

645

already (m) . At first sight, this might seem to be an exception
to the general rule, that among heirs of different degrees, the
nearer always excludes the more remote. But this exception is
one which necessarily follows from the right of sons and grand-
sons to the estate of the grandfather (/i). Accordingly, it has
been held that as regards the sons, grandsons and great-grand-
sons, the right of representation exists even in cases of succes-
sion to the divided property of the last male owner as in the
case of undivided family property, and the divided son will not
exclude the grandson in the succession to the divided pro-
perty of the ancestor (o).

This is merely an illustration of the rule that property,
which is held separate in one generation, always becomes
joint in the next generation. If it is held by a father who is
himself the head of a coparcenary, it passes at his death to
the whole coparcenary, and not to any single member of it,
all of them having under the Mitakshara equal rights by
birth (p). The rights of an adopted son in competition with
a legitimate son have already been discussed ((/).

(m) See ante §§266-268, 421

in) Khettur v. Poorno 15 W R., 482.

(o) Marudayi v. Doraiswami (1907) 30 Mad., 348 following

Ramappa Naicken v. Sithammal (1878) 2 Mad, 182, 184, Muttu-
vaduganatha v. Periasami (1893) 16 Mad, 11, 15. The Mitakshara
gives to the grandson an ‘unobstructed right’ by his birth to the
separate property of his grandfather {vide remarks of Telang, J., m
Apaji Narhar v Ramchandra (1892) 16 Bom., 29, 56] and partition
does not annul it or convert it into an obstructed right; therefore the
existence of a son cannot defeat it although both son and grandson
are separated from their ancestor and from one another; (1907) 30
Mad., 348, 352 supra, Gangadhar v. Ibrahim (1923) 47 Bom, 556.

ip) This rule was illustrated in the following case. A grandson
sued his grandfather and uncles for a partition. He obtained a decree
as to all the joint property, but failed as to part which was held
to be the separate property of the grandfather. On the death of the
grandfather he brought a fresh suit for a share of this, contending
that by descent it had become joint property. This was perfectly
true, but the answer to the plaintiff was that he was no longer a
member of the coparcenary. On the grandfather’s death, his interest
in the joint property passed to the remaining coparceners by survivor-
ship. His own separate property passed to his united sons as heirs,
and in their hands became an addition to the joint property, in which
the divided grandson had no interest. Fakirappa v. Yellappa (1898)
22 Bom., 101.

iq) See ante § 192.

«46

ILLEGITIMATE SONS AS HEIRS.

[chap. XII,

Illegitimate

sons.

of a Sudra.

§ 527. Illegitimate sons in the three higher classes never
take as heirs, but are only entitled to maintenance from the
estate of the father. The right is a personal right and not
heritable (r). The illegitimate son of a Sudra may,
however, in certain circumstances, inherit either jointly
or solely. His rights have already been referred to
under the head of Partition (s), but it will be necessary to
go a little more fully into them here. His position rests
upon two texts. Manu says (^), “A son begotten by a man
of the seivile class on his female slave, or on the female
slave of his male slave, may take a share of the heritage, if
permitted (by the other sons)”. Yajnavalkya enlarges the
rule as follows: “Even a son begotten by a Sudra on a female
slave (dasiputra) may take a share by the father’s choice.
But, if the father be dead, the brethren should make him par-
taker of the moiety of a share; and one who has no brothers
may inherit the whole property in default of daughter’s soi>s”
(tt). The Mitakshara explaining the latter part says: “How-
ever, should theie be no sons of the wedded wife, the son of
the female slave takes the whole estate, provided there be no
daughters of a wife, nor sons of daughteis. But, if there be
such, the son of the female slave paiticipates for half a
share only” iv), Jiinutavahana referiing to the text of Manu
explains it: “The son of a Sudra by a female slave, or other
unmairied Sudra woman, may share, equally with other
sons, by consent of the father”; he paraphrases the text of
Yajnavalkya by the words, “begotten on an unmarried
woman, and having no brother, he may take the whole pro-
perty: provided there be not a daughter’s son” {w).

(r) Chuoturya v. Sahub Purhulad (1857) 7 M I.A , 18, Roshan
Singh V. Bulwant Singh (1900) 27 T A., 51, 22 All., 191, Bhaiya Sher
Bahadur v Bhaiya Ganga Baksh (1913) 41 I.A, 1, Vellaiyappa \.
Natarajan .(1931) 58 I A . 402, 408, 55 Mad, 1; Ananthaya v. Vishnu
(1894) 17 Mad., 160, 161.

( 5 ) .See §§ 424-425.

(r) IX, § 179. The words ‘by the other sons’ in Sir W. Jones*
translation are taken from the gloss of Kiilliika Bhatta. Dr. Buhler
translates the same text, ‘if permitted (by his father).’ This agrees
with the rule laid down by Yajnavalkya.

(li) For the meaning of the term *dasC see Jolly, T L.L., 187-188;
Jha’s Medhatithi Bhashya on Manu, IX, 179, Vol. V, 158, Yajnavalkya,
II, 133, 134; Mitakshara, I, xii, 1; V, May., IV, iv, 32.

(u) Mit., I, zii, 2.

(fi;) Daya Bh., IX, 29, 31. Mr. Colebrooke’s translation has been
accepted as substantially correct by a Full Bench of the Calcutta High
Court in RajarU Nath v. Nitai Chandra (1921) 48 Cal., 643, 683 F.B.

■pARA. 528.]

ILLEGITIMATE SONS AS HEIRS.

647

§ 528. The teim dasiputra has been responsible for
•conflicting judicial opinions (:r). It has been held that the
term ^dasi’ is not exclusively applicable to a female slave (y)
but includes a Sudra woman kept as a concubine (z).

The first question that arises upon these texts is as to
the class of women and the nature of connection meant by
them. It is now settled that an illegitimate son of a Sudra
is entitled as a dasiputra to a share of the inheiitance pro-
vided that his mother was in the continuous and exclusive
keeping of his father and he was not the fruit of an adulterous
oi incestuous intercourse (a). A Full Bench of the Madras
High Couit held that an illegitimate son of a Sudra woman
who was by profession a prostitute before she came into a
man's ( ontinuous and exclusive keeping is a dasiputra within
the meaning of the text and that it is not necessary that a
marriage could have taken place between the fathei and the

(a) Narain Dhara v Rakhal Gam (1875) 1 Cal, 1» Kirpal v.
Sukiirmoni (1892) 19 Cal, 91, Ram Saran v. Tekthand (1901) 28
Cal, 194

(vO At the time of the eaiher Smritis, the term ^dasi^ could have
meant only a slave or a serf and undoubtedly slavery of some sort
was then known Manu, VIll, 415, IX, 55 (Manu mentions seven
kinds of ''lavts) , Artha'^* . Ill, Id, Shamasastri, 222, Dig., JI, 12-13.
Slavery was formally abolished by At I V of 1843, but centuries before,
it had evidently become extinct, though a kind of serfdom probably
continued longei Accordingly, even by the time of Medhalithi, the
term dasi came to mean a concubine or a servant woman in the house.
A Sudra’s son by a \iasd meant a ^on begotten by him on an unmarried
or an unauthorised woman Medhalithi on Manu, IX, 179, Jha*b
Medhatithi Bhashya, Vol V, 158, lolly, T.LL, 187.

(z) (1921) 48 Cal, 643 FB supra

{a) Rajam Nath v. Nitai Chandra (1921) 48 Cal , 643 F B over-
ruling (1875) 1 Cal, 1. (1891) 19 Cal., 91 and (1901) 28 Cal, 194
supra, Chatterhhuj Patnaih v Krishna Chendra Patnaik (1912) 17 C W N.,
442, Annayyan v Chinnan (1910) 33 Mad, 366, Datti Pansi v. Data
Bangara (1869) 4 Mad HC, 204, 215, 4 Mad Jur. 136, V vntatachella
V. Parvatham (1875) 8 Mad HC, 134, Kuppa v Singaravelu (1885) 8
Mad, 325, Dalip v Ganpat (1886) 8 All, 387, Karuppannan v.
Bulokam (1900) 23 Mad, 16, Rahi \ Govind (1875) I'Bom, 97;
Sadii V Baiza (1880) 4 Bom, 37 FB., Soundararajan v. Arunachalam
Chetty (1916) 39 Mad, 136 FB, Subramama v Ratnavelu (1918)
41 Mad, 44 F B , Gangabai v Bandu (1916) 40 Bom, 369, Ram Kali
v, Jamma (1908) 30 All, 508, Bai Nagubai v Bai Monghibai (1926)
53 I.A., 153, 50 Bom, 604 reversing (1923) 47 Bom, 401 Referring
to an avariiddhastn. Lord Darling said* “The word ‘concubine' has
long had a definite meaning whether expressed m the language of
India or of Europe. The persons denoted by it had and have still
where it remains applicable a rt cognised status below that of wife
and above that of harlot. . . . Harlots solicited to immorality, concu-
bines were reserved by one man” 153 I A., 153, 158, 1591. In Raoji
Valad V. Kunjalal Hiralal (1930) 57 I A, 177, 54 Bom, 455, Sir
<^eorge Lowndes remarked that the term dasiputra no doubt originally
meant sons of a female slave. In Southern India, the term “dasi” was
originally used to denote a dancing girl who had to do the dancing
4ind singing in connection with temple festivals.

Meaning of
dasiputra

648

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

mother according to the custom of the caste to which the-
mother belonged (6).

The requirement that the dixsi should be an unmarried*
woman does not, it has been held, mean that she
should not have been married to another before;
accordingly an illegitimate son born to a widow or
a common prostitute kept as a continuous concubine-
is entitled to inherit (c). So too, it would seem that
the condition that the illegitimate son should not be the
offspring of an adulterous connection is satisfied if a con-
nection with a married woman had ceased to be adulterous
before the son is conceived, as where her husband dies before^
the son is conceived (d). The concubine however must be a*
Hindu and not a Christian or a Muhammadan in order to^
entitle her illegitimate son to inheritance (e). It has been
held by the Privy Council that the illegitimate son of a
Sudra by a continuous concubine has the status of a son
and that he is a member of the family and that the share
of inheritance given to him is not in lieu of maintenance but
in recognition of his status as a son (/).

Rights of an § 529. Next, as to the rights of an illegitimate

•on?*^**"**^ son of a Sudra. Upon this the Mitakshara says in
explanation of the texts of Manu and Yajnavalkya, “The
son begotten by a Sudra on a female slave, obtains
a share by the father’s choice, or at his pleasure..
But after the demise of the father, if there be sons
of a wedded wife, let these brothers allow the son of
the female slave to participate for half a share, that is, let
them give him half as much as the amount of one brother’s
allotment.” It adds that in default of legitimate sons, the^
illegitimate son takes the whole estate, but if there are*

(6) Soundararajan v. Arunachalam Chetty (1916) 39 Mad., 136*
F.B. dissenting from Sundaram v. Minakshi Achi (1912) 16 I.C., 787
(where the son of a dancing girl was held not entitled to inherit) ;
(1921) 48 Cal., 643 F.B. supra.

(c) Rahi V. Govind (1876) 1 Bom., 97; Subramanya v. Rathnavelu
(1918) 41 Mad., 44 F.B.; Gangabai v. Bandu (1916) 40 Bom., 369.

id) Tukaram v. Dinkar Bisbat A.I.R. 1931 Bom., 221, 33 Bom. L.R.,
289, sed quare.

(f) Sitaram v. Ganpat A.I.R. 1923 Bom., 384, 25 Bom. L.R., 429;
Lingappa v. Esudasan (1904) 27 Mad., 13. A son of a Sudra by a
Brahmin mistress is not a dasiputra. Jimutavahana makes this clear
D. Bh., XI, 29. Ramchandra v. Hanamnaik (1936) 60 Bom., 75; Datti
Parisi v. Datti Bangaru (1869) 4 M.H.C., 204, 214.

(/) Vellayappa v. Nataraja (1932) 58 I.A., 402, 414, 55 Mad., 1;
Bhagwant Rao y. Punja Ram A.I.R, 1938 Nag^ 1; see §424 and
note ik) to it.

PARA. 529 .] SUCCESSION UNDER MITAKSHARA LAW.

649 ^

daughters or daughter’s sons, he ‘participates for half a share
only’ (g) . The Bengal authorities are to the same effect, but
say nothing of his right to share with the daughters (A) . The
only writer who refers to his right where there is a widow, is
the author of the Dattaka Chandnka. He says, “If any, even
in the series of heirs down to the daughter’s son, exist, the
son by a female slave does not take the whole estate, but on
the contrary shares equally with such heir” (i). Accordingly,
in default of male issue, the illegitimate son takes as coheir
along with the widow, daughter or daughter’s son (/).

An illegitimate son is not a coparcener with his father
or his coparceners or even with his own legitimate
brothers in respect of the joint family estate (A). It is set-
tled that the text of Yajnavalkya declaring the rights of an
illegitimate son refers only to the estate of a separated house-
holder (A^). But when a legitimate son and an illegitimate
son succeed to their father’s separate estate, they take as
coparceners with mutual rights of survivorship (/).

The half share which an illegitimate son of a Sudra takes
in the estate of his deceased father is the half of that which
he would have taken had he been legitimate, not a half of
the share which the other participants take. A legitimate

(5') Mit, I, xii, 2.

ih) D. Bh, IX, 29. 31. DKS, VI. 32-35.

(i) Dattaka Chandnka, V, 30, 31. Minakshi v. Appakutti (1910>
33 Mad . 226.

(/) Ramalinga v. Pavadai (1902) 25 Mad, 519, 521; (1910) 33
Mad, 226 supra, Kamulammal v. V isvanathaswami (1923) 50 I.A., 32,.
46 Mad . 167.

{k) See ante §424. Ram Sumran Singh v Mahabir Sewak Singh
(1934) 63 I. A., 106, A.I.R 1934 P.C., 74, Krishnayyan v. Muttusami
(1884) 7 Mad., 407, Ranoji v. Kandoji (1885) 8 Mad,, 557; Thangam
Filial V. Suppapillai (1889) 12 Mad., 401; Ramalinga Muppan v-
Pavadai (1902) 25 Mad, 519, Packirisawmy v. Dorasamy (1931) 9-
Rang, 266, Ayiswaryanandaji v. Sivaji (1926) 49 Mad., 116; Raju
Thambiran v. Arunagiri A I.R. 1933 Mad., 397, 64 M.L.J., 500, Shamu
V. Babu Aba (1928) 52 Bom., 300.

(/cl) Vellayappa v. Nataraja (1932) 58 I.A., 402, 407, 55 Mad., 1
approving of Ramalinga v. Pavadai (1902) 25 Mad., 519 and Gopala^
sami Chetty v. Arunachalam Chetty (1904) 27 Mad., 32; Ranoji v.
Kandoji (1865) 8 Mad., 557; Parvathi v. Thirumalai (1867) 10 Mad.,.
334.

(/) See ante §424; Sadu v. Baiza (1880) 4 Bom., 37 F.B.; Raja
Jogendro v. Nityanund (1891) 17 I.A., 128, 18 Cal., 151; (1932) SB
I. A., 402, 55 Mad., 1 supra; A.I.R. 19^ Nag., 1 supra.

Text refers
to separate
estate.

650

widow’s succession.

[chap, xii,

son and an illegitimate son will therefore take three-fourths
and one-fourth respectively [m). So too, it has been held
that as between an adopted son and an illegitimate son, the
former will be entitled to three-fourths and the latter to
one-fourth, for the adopted son will have the same rights as a
legitimate son in competition with an illegitimate son (n).
As against a widow, daughter or daughter’s son, an illegiti-
mate son, in accordance with the decision of the Privy Council
in KamulammaV s case (o), will take a half, not a third, of
the estate.

Now that under the Hindu Women’s Rights to Property
Act, 1937, a widow is entitled to the same share as a son, not-
withstanding any rule of Hindu law or custom to the contrary,
in a case of succession governed by the Act, the illegitimate
son’s share in competition with the widow will be only one-
fourth; it will be one-sixth in competition with a legitimate
son and a widow. Similarly as the widow of a predeceased
son or of the predeceased son of a predeceased son will suc-
ceed as w^ell along with the male issue and the widow as in
their default for the share of a son or of a grandson as the
case may be, the illegitimate son’s share will correspondingly
be reduced.

In default of the widow, daughter and daughter’s son as
well as the new statutory heirs, he will of course take the
whole estate (pi.

Where a widow who has taken a share of the inheritance
dies, her share descends to her daughter or daughter’s son
as the case may be and an illegitimate son is not entitled
to any part of it {q). This is distinguished, if not doubted,
by the Nagpur High Court in Bhagwant Rao v. Punja Ram,
where on a partition between the legitimate and illegitimate
sons, the w^idow was allotted a share and on her death, the
illegitimate son was held entitled to a share in that pro-

Share

affected by
the Act.

(m) Kamulammal v. Viswanathaswami (1923) 50 I. A., 32, 46 Mad.,
167; Shesgiri v. Girewa (1890) 14 Bom., 282; Meenakshi v. Appakutti
(1910) 33 Mad., 226; Chellammal v. Ranganadha (1911) 34 Mad.,
277.

(n) Maharaja of Kolhapur v. Sundaram (1925) 48 Mad., 1.

(o) KamulamrAal v. V iswanathastoami (1923 ) 50 I. A., 32, 46 Mad.,
167 supra. The Privy Council decision being based on the authorities
of all the schools is applicable to all Hindus. T^ie view in Gangabai
V. Bandu (1916) 40 Bom., 369 is no longer law. Karuppayee
V. Ramasivarru (1932) 55 Mad., 856; Sakharam v. Sham Rao A.I.R.
1932 Bom., 234.

(p) Saraswati v. Manu (1879) 2 All., 134.

iq) Karuppayee v. Ramaswami (1932) 55 Mad., 856.

PARAS. 529-530.] daughter-in-law's succession.

651

pert)r(^^). But the decision of the Madras High Court, in
'Karuppayee v. Ramaswami appears to be right upon the
express texts of the Mitakshara read with the Dattaka
Chandnka (V, 30, 31). The illegitimate son, though he
inherits on the death of his putative father, along with or
in default of male issue, widow or daughter, cannot come in
as a reversionary heir on the death of the widow or daughter,
as he IS undoubtedly neither a sagotra nor a bhinnagotra
sapinda of the last male-holder within the text of Manu.
Where a widow succeeding after the Act dies, the illegitimate
son will not, foi the same reason, be entitled to any increased
share on her death.

Where a Sudra dies without leaving legitimate male issue,
the legitimate son of his predeceased illegitimate son is
entitled to succeed to his estate exclusively against the divided
brother of the propositus and will succeed along with the
widow, daughter or daughter’s son as well as with the
daughter-in-law and the grand-daughter-in- law But an illegi-
mate son of a predeceased illegitimate son cannot succeed, as
the right to represent an ancestor under Hindu law is con-
fined by the texts only to one’s legitimate male issue (r).

The illegitimate son can only inherit to his father and
not to collaterals nor vice versa ( 5 ). Illegitimacy does not
prevent two illegitimate brothers claiming to each other
(^ 563). Nor is there any absence of heritable blood as
between bastards and their mother (/) or their father (a).

5 ^ 530 By virtue of the Hindu Women’s Rights to
Property Act, 1937, the widow and the widows of a pre-
deceased son and of the predeceased son of a pre-
deceased son succeed to the separate estate of a man

( 9 I) AIR 1938 Nag, 1.

(r) Ramalinga v Pavadai (1902) 25 Mad, 519 (where the ques-
tion was left open) Viswanatha v Doraistvami (1925 ) 48 Mad, 944
(legitimate descendants of two sons of a Hindu dancing girl are
entitled to succet d to each other) Where the Sudra leaves legitimate
male issue, see § 424

(5) Subramania v Rathnavelii (1918) 41 Mad, 44 FB ,

Ayiswaryanandaji v Sivaji (1926) 49 Mad., 116, Rathinasabapathi v
Gopala Odayar (1929) 56 MLJ, 673, Ravji Valad v Sakuji Valad
(1910) 34 Bom, 321, Dharma v. Sakharam (1920) 44 Bom, 185;
Zipru V. Bomptya (1922) 46 Bom., 424, Shome Shankar v Rajesar
(1899) 21 All, 99, Raj Fateh Singh v Baldeo Singh (1928) 3 Luck,
416; Bhagwant Rao v. Punja Ram A I.R. 1938 Nag, 1.

(t) Pandiya v. Pah (1863) 1 MH.C, 478, Mayna Bai v, Uttaram
(1864) 2 MH.C, 196, (1861) 8 M.I.A , 400, Sivasangu v. Minal (1889)
12 Mad, 277, Narasanna v Ganga (1890) 13 Mad., 133, Arunagin v.
Ranganayaki (1897) 21 Mad., 40; Tripura Charan v. Harimati Dassi
•(1911) 38 Cal, 493; Jagarnath Gir v. Sher Bahadur (1935) 57 All, 85.

(u) Subramania v. Rathnavelu (1918) 41 Mad., 44 F B.

Widow and
widows of son
and grandson.

652

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

Co-widows
take jointly.

along with the male issue for their respective shares.
Except in cases of succession governed by the Act, the old
rule applies. In default of male issue, joint with or sepa-
rate from, their father, the next heir is the widow {v ) . Where
there are several widows, all inherit jointly, according to r
text of the Mitakshara, which should come in at the end of
II, i, § 5, but which has been omitted in Mr. ColebrookeV
translation; “The singular number ‘wife’, in the text of
Yajnavalkya, signifies the kind; hence, if there are several
wives belonging to the same, or different classes, they divide
the property according to the shares prescribed to them and*
take it” (ti;). All the wives take together as a single heir
with survivorship, and no part of the husband’s property
passes to any more distant relation till all are dead (x).
Where the property is impartible, as being a Raj or ancient
zamindary, of course it can only be held by one, and then
the senior widow is entitled to hold it, subject to the right
of the others to maintenance (y). In other cases the senior
widow would, as in the case of an ordinary coparcenership,
have a preferable right to the care and management of the
joint property. But she would hold it as manager for all,
with equality of rights, not merely on her own account, but
with an obligation to maintain the others (z). A widow
takes only a limited interest in her husband’s estate. It is
not her stridhana and on her death it reverts to her husband’s
heirs (a). In Mithila, however, she takes an absolute estate*

(i;) Mit., II, 1, Daya Bhaga, XI, 1, §43; V. May., IV, 8, §§1-7;
Viramit., p. 31, ch. Ill; Ramappa v. Sithammal (1879) 2 Mad., 182;
BaLkrishna v. Savitribai (1879) 3 Bom., 54. See ante § 522, et seq.
The same rule prevails among the Thiyans of the Malabar coast who*
follow the Makkattayam law, Imhichi Kandan v. /. Pennu (1896) 19"
Mad., I. So the widow succeeds at once on renunciation of his rights
by the prior heir, Rubee v. Roopshunker 2 Bor., 656, 665 L713] ; Ram
Kannye v. Meernomoyee 2 W.R., 49

(w) Smriti Chandrika, XI, 1,. §57, note 1; Viramit., Ill, i, 2,
Setlur’s ed., p. 373; Jijoyiamba Bayi Saiba v. Kamakshi Bayi (1868>
3 Mad.H.C., 424, 451.

(z) Jijoyiamba v. Kamakshi (1868) 3 Mad.H.C., 424; Bhugwan^
deen v. Myna Baee 11 M.I.A., 487, 9 W.R. (P.C.), 23; Gajapathi
Nilamani v. Gajapathi Radhamani (1877) 4 I. A., 212, 1 Mad., 290;
Venkayyamma v. V enkataramanayyamma (1902) 29 I. A., 165, 25 Mad.,.
678; Gaunnath v. Gaya Kuar (1928) 55 I.A., 399, 55 M.L.J., 339;
Dulhin Parbati v. Baijnath (1935) 14 Pat., 518; Bulakhidas v. Keshav-
lal (1882) 6 Bom.. 85.

(y) Vutsavoy v. Vutsavoy 1 Mad. Dec., 453; Seemevullala v.
Tungama 2 Mad. Dec., 40.

(z) Jijoyiamba v. Kamakshi (1886) 3 Mad.H.C., 424.

(a) (1900) 11 M.I.A., 487. So also the grandmother and great-
grandmother as well as the daughter and sister and other women of
the family in every school except in Bombay where daughters born
in the family such as the sister, father's sister take absolutely (§ 614) .

PARAS. 530-531.]

RIGHTS OF CO-WIDOWS.

653

in the movable property of her husband (6). This will not
be the case in successions governed by the Act of 1937(6^).

§ 531. The rights of two or more widows who succeed Rights of
to the estate of a man as well as the rights of two or more co-widowa
daughters who take as coheirs have been authoritatively
restated in a recent decision of the Privy Council in Gauri
Nath v. Gaya Kuar (c). “If a Hindu dies leaving two
widows, they succeed as joint tenants with a right of survivor-
ship. They are entitled to obtain a partition of separate
portions of the property so that each may enjoy her equal
share of the income accruing therefrom (d). Each can deal
as she pleases with her own life interest, but she cannot
alienate any part of the corpus of the estate by gift or will
so as to prejudice the rights of the survivor or a future
reversioner (e). If they act together, they can burden the
reversion with any debts contracted owing to legal necessity,
but one of ttiem acting without the authority of the other,
cannot prejudice the right of survivorship by burdening or
alienating any part of the estate. The mere fact of partition
between the two, while it gives each a right to the fruits
of the separate estate assigned to her, does not imply a right
to prejudice the claim of the survivor to enjoy the full fruits
of the property during her lifetime” (/). But the Privy

(b) Sureshwar v Maheshrani (1921) 47 I A, 233, 48 Cal, 100;
Latur Rai v. Bhagwan Da% h I.R 1936 Pat, 80, 82, Jagarnath Prasad
V Sura] Deo AIR. 1937 Pat , 483,

(6^) For the law before and after the Act of 1937, see §§591, 643.

(c) (1828) 55 I A, 399, 33 CWN, 39

{d) Bhugwandeen v. Myna Baee (1866) 11 MIA, 487, Gajapathi
Nilamam v. Gajapathi Radhamani (1877) 4 LA, 212, 1 Mad., 290; Mt.
Sundar v. Parhati (1889) 16 I A, 186, 12 All, 51, Jijoyiamba v.
Kamakshi (1886) 3 M.H C R ,424, Rindamma\, V enkataramappa (1886)
3 M.H C R , 268, Kanni Ammal v. Ammakannu Ammal (1900) 23 Mad ,
504, Chitter v Gaura (1912) 34 All., 189; Gaunnath Kakaji v. Gaya
Kuar (1928) 55 I A., 399, AIR. 1928 P.C , 251, dissenting from
Jai Narain v Munnilal (1928) 50 All, 488, Appalasuri v Kannamma
(1925) 49 M.LJ., 479; Dulhin Parbati v. Baijnath (1935) 14 Pat.,
518, Uchmatan v. Rajendra (1938) 67 C.L.J , 115.

(e) (1928) 55 I A, 399 supra, (1925) 49 M.LJ, 479 supra,
Vadali V. Kotipalh (1903) 26 Mad., 334; Jainarain v. Hira (1933) 12
Pat., 778; Han Narayan v. Vitab (1907) 31 Bom., 560; Durgabat v
Cita (1911) 33 AIL, 443.

(/) (1928) 55 I.A., 399, 403 supra; (1925) 49 M L.J , 479 supra,
explaining Kaliyanasundaram v. Subba (1902) 14 MLJ, 139; Nabin
Chandra Chakravarti v. Shona Mala Chose (1930) 35 C.W.N., 279
In Appalasuri v. Kannammal (1925) 49 M.L.J., 479, it was held
that “(1) the estate of co- widows or other coheiresses in Hindu law
is a joint estate but it is unlike other joint estates. It is indivisible
{Kathaperumal v. Venkabai (1880) 2 Mad., 1941. Strictly it can

654

SUCCESSION UNDER MITAKSHARA LAW. [ CHAP. XII,

Effect of
unchastity.

Council pointed out that there may be cases where when the
consent of the co-widow is applied for and unreasonably
withheld, an alienation for necessary purpose may be bind-
fg)- Where however two widows enter into partition
granting to each full powers of alienation and one of them
alienates her share to a stranger and then dies, the surviving
widow cannot recover the property so alienated. She
has full power to alienate the whole or any part of her
interest in the estate for her life, and has in fact done so (h).
So also where the two widows enter into partition or other
arrangement so as to bind them until the death of all of
them, and one dies before the other without alienating her
share, it passes to the heirs of her stridhana property and not
to the other co-widow or her reversioners (i). But the right
of the reversioners will not be accelerated by such an ar-
rangement. A widow can alienate her life interest as against
her co-widows, just as she can against the reversioners and
such an alienation can be enforced by partition against them,
without prejudice to their right of survivorship (y).

§ 532. It is a well-settled rule of Hindu law that chastity
is a condition precedent to the taking by the widow of her
husband’s estate (A), unless the unchastity was condoned by
the husband (/). But a widow who has once inherited the

never be divided so as to create estates such that each sharer

IS the owner of her share and at her death the reversioner’s estate
falls in. Such a division is impossible in law. (2) Such partition
as IS permissible is merely for the convenience of their enjoyment by
the sharers, and may be of two kinds (i) so as to last during the
lifetime of both the widows, and (ii) so as to bind them until the
death of all of them ”

ig) (1928) 55 I.A., 399, 406.

(A) Ramakkal v. Ramaswami (1899) 22 Mad., 522, Kanni Animal
v Ammakannu (1900) 23 Mad, 504; Kailash Chandra v Kashi
Chandra (1893) 24 Cal., 339; Ammani v. Periasami (1923) 45

M.L.J , 1.

(/) Ammani v. Periasami (1923) 45 M.L.J., 1; Chengappa v.
Buradagunta (1920) 43 Mad., 855 dissenting from the dictum to the
contrary in Rindamma v. V enkataramappa (1886) 3 M.H.C R., 268;
Meenakshi Achi v. Suhramania A.I.R. 1930 Mad., 175.

(/) Janoki Nath v Mothurunath (1883) 9 Cal., 580 F.B disagree-
ing with Kathaperumal v. Venkabai (1878) 2 Mad , 194, Christien v..
Tekaithi Narbada (1908) 13 C.W.N., 611.

ik) Mitakshara, II, 1, §§37-39 “a wedded wife being chaste”;
Smriti Chandrika, XI, 1, §§12-21; V. Ratnakara, XXXIV, 4; Vivada
Chintamani, 289-91; V. May., IV, 8, §§ 2, 6, 8, 9; Dayabhaga, XI,
1, §§ 47, 48, 56. See all the cases discussed, Kery Kolitany v Monee-
ram 13 B.L.R., 1; on appeal, 5 Cal., 776, 7 I A, 115, (1880) 19 W.R.,
367. The mere fact that the wife had been cast off by her husband,
where no want of chastity was proved, does not disqualify her fronr
inheriting at his death.

(/) Gangadhar v. Yellu (1912) 36 Bom., 138; Radhe Lai v. Bhawani
Ram (1918) 40 All., 178.

PARAS. 532-533.] widow’s right on remarriage.

655

estate of a deceased husband is not liable to forfeit it by
reason of subsequent unchaslity (m).

The rule of Hindu law that an unchaste widow cannot Recent Act.
succeed to the estate of her husband, can no longer, it would
seem, apply to successions governed by the Hindu Women’s
Rights to Propel ty Act, 1937, for the language of the statute,
“notwithstanding any rule of Hindu law or custom to the
contrary, his widow . . . shall be entitled”, is sufficiently
comprehensive and effective to abrogate that lule. The widow of
a predeceased son or of the predeceased son of a predeceased
son would, except in Bengal, not be coveied b> the condition
of chastity but there, as elsewhere, the new' rights of succes-
sion conferred upon them would prevail without an) such
condition precedent.

§ 533. The second marriage of a widow was foimerly Second
forbidden, except where it was sanctioned by local or caste
custom In all cases, whether it was permitted by usage or
otherwise, second marriage entailed the foifeiture or divest-
ing of the widow’s estate (n) Remarriage of widows is now
legalised in all cases by the Hindu Widows’ Remarriage Act
(X^^ of 1856). But the Act provides that all rights and
interests which a widow may have in her deceased husband’s
estate shall cease and determine on her remarriage as if she
had then died.

Even where widows are by custom of the caste entitled By custom,
to remarry, the estate vested in a widow will terminate on
her reman lage In Murugayi v. Virarnakali, a case of a
woman of the Maravei caste amongst whom widows could re-
marry accoiding to the custom of the caste, it was held that as
the principle upon which a widow takes is that she is the sur-
viving half of her husband, it cannot apply where she
remarnes and that the law will not permit the widow who
has remarried to retain the inheritance (o). The same rule
was applied to the remarriage of a Lingait Gounda woman
who could remarry according to the custom of her caste (/?).

In Vitta Tayaramma v. Chatakondu Sivayya, Wallis, C. J ,
explaining the decision in Murugayi v. Virarnakali, held that

(m) Kery KoUtany v Moneeram 13 B.L.R , 1, affd (1880)

7 I.A., 115, 5 Cal, 776, Parvati v Bhiku (1867) 4 Bom H C.

(AC.J.), 25, Nehalo v. Kishen (1880) 2 AIL, 150 FB.,

Bhawani v. Mahtab ib , 171, Sellam v. Chinnammal (1%1) 24 Mad.,

441. Punjab Customs, 61

(n) 1 Stra H L., 242, W & B, 110, Kern Kolitam v. Moneeram
19 WR, 367 affd. in (1880) 7 I A., 115, 5 Cal., 776.

io) (1877) 1 Mad, 226.

ip) Koduthi V Madu (1884) 7 Mad., 321.

•656

SUCCESSION UNDER MITAKSHARA LAW. [ CHAP. XU,

Conversion.

Future

rights

4inaffected.

independently of section 2 of the Act, a widow forfeits her
estate on her remarriage (q).

Accordingly, it is settled that where a widow re-marries
whether by custom of the caste or by the enabling provisions
of the Act, she forfeits, on her remarriage, her interest in her
husband’s estate. In Allahabad and Oudh, she is so divested
except where by the custom of the caste and apart from the
Act, she is entitled to remarry (r).

A Hindu widow who abjures Hinduism and becomes, for
instance, a Muhammadan before her remarriage forfeits the
property of her husband by renouncing the status of a widow
by remarriage ( 5 ). The words, ‘any widow . . . upon her
remarriage’ in section 2 are wide enough to cover the case
of any widow of a Hindu remarrying, “whether or not her
marriage would otherwise be prohibited by any custom or
interpretation of Hindu law, and whether the remarriage was
to a Hindu or to a member of another religion” (0-

The Act only deprives her of the inheritance vested in
her before her remarriage but does not deprive her of future
rights of succession. It has been held that a Hindu widow,
notwithstanding her remarriage, is entitled to succeed as
heir to the estate of a son or daughter by her first marriage
who dies after her second marriage (u). The Bombay High

iq) (1918) 41 Mad., 1078 F.B. The same view is taken by the
other courts. Vithu v. Govind (1898) 22 Bom., 321 (F.B.) ; Suraj v.
Attar (1922) 1 Pat., 706; Rasul v. Ram Suran (1895) 22 Cal., 589;
Santala v. Badaswan (1923) 50 Cal., 727.

(r) Har Saran v. Nandi (1889) 11 All., 330; Ranjit v. Radha
(1898) 20 All, 476; Khuddo v. Durga Prasad (1906) 29 All., 122;
Gajadhar v. Kaunsilla (1909) 31 All., 161; Mula v. Partab (1910)
32 All., 489; Mangat v. Bharto (1926) 49 All, 203, Nagar v. Khase
A.I.R. 1925 All., 440; Ba' Krishna v. Paij Singh (1930) 52 All., 705;
Abdul Aziz v. Nirma (1913) 35 All., 4^; Bhola Umar v. Kausilla
(1933) 55 All., 24; Bhola Umar v. Kausilla (1936) 58 All., 1034;
Narain v. Mohun Singh A.I.R. 1937 All., 343; Ram Lall v. Mt, Jwala
(1928 ) 3 Luck., 610, 1928 Oudh, 338; Gajadhar v. Mt. Sukhdei (1930)
5 Luck., 689, 1931 Oudh, 107.

( 5 ) Vitta Tayaramma v. Chatakondu Sivayya (1918) 41 Mad., 1078
F.B.; Murugayi v. Viramakali (1877) 1 Mad., 226; Matungini v.
Ram Ruttan Roy (1892) 19 Cal., 289 F.B.; Suraj v. Attar (1922)
1 Pat., 706; Raghunath v. Laxmibai (1935) 59 Bom., 417 dissenting
from Abdul Aziz v. Nirma (1913) 35 AIL, 466.

(0 Per Wallis, C. J., in (1918) 41 Mad., 1078, 1091 F.B. supra
and per Wilson, J,, in (1892) 19 Cal., 289 F.B. supra.

iu) Akora v. Boreani (1869) 2 B L.R. (A.C.J.), 199; Rupan v.
Hukmi Punjab Customs, 99; Chamar v. Kashi (1902) 26 Bom., 388;
Basappa v. Rayava (1905) 29 Bom., 91; Lakshmana v. Siva (1905)
28 Mad., 425; Bhiku v. Keshav A.I.R. 1924 Bom., 360; Kundan v.
Secretary oj State (1926) 7 Lah., 543.

TARAS. 533-534.] daughter’s succession. ^57

t

Court has held that a Hindu widow who has remarried is
not entitled to succeed as a gotraja sapinda in the family of
her first husband (v). The ground of decision was that she
must be deemed to be dead with regard to her first husband
and cannot be considered his gotraja sapinda. Obviously
the widow on her remarriage loses not only her husband’s
gotra but also the sapinda relation which she acquired by be-
•coming a wife. Both could be retained by her only while she
retained her status as his patni (wedded wife) within the mean-
ing of Yajnavalkya’s text. It is impossible to see how she can
continue to be the patni of her former husband when she
has become the patni of her second husband (w) , There-
fore the estate which a patni takes as such, being a limited
estate, can endure only so long as she is a patni. Accordingly
when a widow’s estate terminates on her remarriage, the
interest of any alienee from her, where the alienation is not
for necessity, determines on her remarriage and does not
endure for her life (rr).

The recent Hindu Women’s Rights to Propeity Act, 1937, Recent Act.
while it enables a Hindu woman, notwithstanding her un-
chastity to inherit, does not affect the duration of the limited
estate which a Hindu widow lakes and which is held by

her only during her widowhood, the Act must also be read
subject to the Hindu Widows’ Reman lage Act.

§ 534. The daughter comes next to the widow, taking Daughter,
after her as well as in default of her (y), except where, by

iv) Pranjivan v. Bai Bhikhi (1921) 45 Bom, 1247

iw) The tran«^lation of *pntni' into widow is responsible for part
of the confusion The widow after her remarriage may be a sapinda
to ‘^ons or daughfers born of her or their descendants, though she
cannot be a sapinda to any other relation of her first husband’s family.
The sapinda relationship by marriage is only by legal construction
[Lulloohhoy V Cassibai (1880) 7 lA, 212, 234, 5 Bom, 110, 1211
and IS destroyed when that relationship is destroyed It is only the
sapinda relationship due to real consanguinity that can continue.
See §119

(x) Vijiaraghava Pillai v. Ponnammal (1932) 62 M L.J., 131,
Nitya Madhav Das v. Srinath Chandra (1908) 8 CLJ, 542, Muthu
Naicken v Srinivasa (1911) 1 M.W.N., 82 As to whether she
loses her right of guardianship, see Khushali v Ram (1881) 4 All.,
195; Ganga v Jhalo (1911) 38 Cal, 862, Mt Indi v Ghanm (1920)
1 Lah , 146; Mt Ram Labhai v. Durgadas (1934) 15 Lah., 28.

(jc^) Sec. 3 (3) of the Act; see art. 125, Limitation Act, ‘until her
remarriage’.

(y) Mit., II, 2, Smriti Chandrika, XI, 2, V. May, IV, 8, §10;
Wivada Chintamani, 292, D. Bh., XI, 2, §§ 1, 30, Viramit., Ill, 11 ,
Setlur’s ed.. 406-412.

44

6Sft

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII^

some special local or family custom, she is excluded {z). Of
course daughters inherit only on the death of the last sur-
viving widow (a).

The view of Asahaya, Medhatithi and Vijnanesvara is that
a maiden daughter is entitled along with the brothers to a
share in the joint estate (b). Katyayana, Parasara and Devala
state that an unmarried daughter succeeds in preference to a
married daughter, Katyayana making a further distinction
between an unendowed and endowed daughter (c). Brihaspati
says that a daughter married to a man of the same caste as her
own shall inherit her father’s property, whether she may have
been appointed or not (d). The Mitakshara provides: “If there
Rule in the competition between a married and an unmarried daughter,

Mitakaliara. the unmarried one takes the succession under the specific
provision of the text of Katyayana. If the competition be
between an unprovided and an enriched daughter, the un-
provided one inherits; but, on failure of such, the enriched
one succeeds; for the text of Gautama is equally applicable
to the paternal, as to the maternal estate” (e).

In Woorna Deyi v. Gokoolanund, the Privy Council held
that failing a maiden daughter, the succession to a deceased

(z) See as to such customs, Perry, 0. C., 117; Bhau Nanaji v.
Sundrabai (1874) 11 Bom. H.C., 249, Russic v. Punish S.D. of 1847,
205; Hiranath v. Ram Narayan (1872) 9 B.L R , 274, 17 W.R., 316;
Chowdhry Chintamun v. Mt, Nowlukho (1875) 2 LA., 263, 24 W.R.,
255; Pranjivan v, Bai Reva (1881) 5 Bom., 482, Punjab Customs, 16,
25, 37, 47; Bajrangi v. Manokarmka (1908) 35 I.A., 1, 30 All, 1;
Parbati v. Chandarpal (1909) .36 LA., 125, 31 All., 457; Balgobind v.
Badri Prasad (1923) 50 LA., 196, 45 All., 413, Raj Bachan Singh v.
Bhanwar (1929) 4 Luck., 690, 1929 Oudh, 296; Bhaghwat Misir v. Mt,
Sheokah A.I.R. 1937 All., 290.

(а) In Northern India the principle of agnation prevails in its
strictest form. Not only are agnates preferred to cognates, but in
many tribes of the Punjab cognates are absolutely excluded from
succession, so that the landed property of the family may not pass
out of the gotra. Even such near relations as daughters and their
sons are debarred from inheritance (Punjab Customs, 72, Punjab Cust.
Law. II, 80, 111, 48). In Oudh also in several instances, the village
wajib’ul-arz states that, whether the property be ancestral or self-
acquired, daughters and daughter’s children have no right of inherit-
ance. A circular of the Chief Commissioner of Oudh, 42 of 1864, lays
down the same rule as regards the great Chattn families of that
province.

(б) Mit.. L vii, 14.

<c) Smritichandrika, XI, 2, 20; Mit., II, 2, 2; VivadachintamanL
293; Jha, H.L.S., II, 485.

(d) Brih., XXV. 57.

(e) Mit., II, 2, 34; Gautama says: "A woman’s separate property
goes to her daughters, unmarried or unprovided” (cited in the Mit.)
Gaut., XXVIII, 24; Dr. Buhler gives a different translation; see also*
Dig., II, 603.

PARA. 534 .] PREFERENCE AMONG DAUGHTERS.

659

father’s estate devolves on an indigent married daughter and
that her right of succession is not lost by reason of her becom-
ing a childless widow (/). The view of the Smritichandrika
(g), which was not followed as an authority in the Benares
school, was subsequently rejected in Madras also in Simmani
Ammal v. Muthammal (A), where it was held that sonless
or barren daughters were not excluded from inheritance by
their sisters who have male issue.

It is therefore now settled that in the Mitakshara
school, as between daughters, the inheritance goes first
to the unmarried daughters, next to daughters who
are married and indigent, and lastly to daughters who are
married and possessed of means. A married daughter
includes a widow, whether childless or not (i). The words
‘unprovided for’ and ‘enriched’ have been construed to mean
‘indigent’ and ‘possessed of means’ and it has been held that
these words do* not refer to the question whether a provision
was made for the daughters or not (/)•

In Tara v. Krishna, a daughter who in a maiden condition
became a prostitute was held to be neither a kanya (unmar-
ried) nor a kulastri (married) but not being disqualified,
would succeed to her father’s property only in default of
both married and unmarried daughters. The ground of deci-
sion was that she became a sadharanastri or common woman,
that the texts naming the maiden only, could not be applied
to her and that therefore she could only take on principles
of reason and equity after those expressly named (k) .

if) (1878) 5 LA, 40, 3 Cal., 587,

(g) Smnlichandrika, XI, 2, 21.
ih) (1878) 3 Mad. 265.

(i) Rajrani v. Gomati (1928) 7 Pat, 820.

(/) Manki Kunwar v. Kundan Kunwar (1925) 47 All., 403, 2
Stra. HL., 242; Benode v. Purdhan 2 W.R., 176 (married daughter
not excluded); Wooma Deyi v Gokoolanund (1878) 5 I A., 40, 3
Cal., 587 (married and indigent) , Audh Kumari v Chandra
(1880) 2 All, 561; Simmani v Muthammal (1880) 3 Mad, 265,
Danno v. Darbo (1881) 4 All, 243 (where a daughter otherwise well
off but received no provision from father was held not to be unprovided
for); Poll V. Nerotum (1869) 6 Bom. H.C., 183 (indigent and un-
married) ; following Bakubai v Manchhabai 2 Bom. H.C., 5 (indigent) ;
Jamnabai v. Khimji (1890) 14 Bom, 1; Totawa v. Basawa
(1899) 23 Bom., 229; Bayava v. Parvateva A.I R. 1933 Bom., 126
(unmarried preferred to married) ; Sheo Gobind v. Ram Adhin 8
Luck, 182, A.I.R. 1933 Oudh, 31.

{k) (1907) 31 Bom., 495, following Advyapa v. Rudrava (1880)
4 Bom., 104; Swasangu v. Minal (1889) 12 Mad., 277.

Preference

among

daughters.

660

daughter’s estate.

[chap. XII,

Succession
of several
daughters.

Bombay.

§ 535. Where daughters of the same class exist, all of
them, except in Bombay, take jointly in the same manner as
widows with survivorship (Z). If they choose to divide the
property for the greater convenience of enjoyment they can
do so, but they cannot thereby create estates of severalty,
which would be alienable or descendible in any different
manner (m). One daughter can, however, alienate her own
life interest, and effect can be given to such alienation by
a partition (n).

Daughters can enter into a partition so as to put an end to
their right of survivorship; but it will not let in the next
reversioners till the death of the survivor (o). In brief,
where daughters take jointly, their rights are governed by
the same rules as are applicable to co-widows (p). If at
the death of the last survivor, there exists another class of
daughters who have been previously excluded, they will come
in as next heirs, if admissible {q) . Where property is im-
partible, the eldest daughter of all the sisters, or of the class
which takes precedence is the heir (r). A daughter however
takes only a limited and restricted interest in the estate of
her father just like a widow, and on her death, it reverts
to the next heirs of her father (s ) .

In the province of Bombay, in accordance with the text
of Mayukha, it is settled that daughters take not a limited
estate jointly, but absolute estates in severalty. Each takes
a moiety of her father’s estate as her stridhana and on her
death it passes to her own heirs as her stridhana property

(/) Aumirtolall v. Rajoni Kant (1875) 2 I.A., 113, 126; Katama
Nachiar v. Dorasingha (1871) 6 310; Venkayamrna v. Ven-

kataramanayyamma (1902) 26 I A., 156, 165, 25 Mad., 678, 687.

{m) Aumirtoolall v. Rajonee Kant (1875) 2 I.A., 113, 126;
F. MacN., 55; Senganialathammal v. Valayuda (1867) 3 Mad. H.C.,
312, 317; Kailash Chandra v. Kashi Chandra (1897) 24 Cal., 339;
Cobind Krishna v. Abdul Qayyam (1903) 25 All., 546, Alamelii v.
Balu (1920) 43 Mad., 849.

(n) Kanni v. Ammakannu (1900) 23 Mad., 504.

(o) Latchamma v. Subbarayudu A.I.R. 1925 Mad., 343; Sundara^
siva V. Viyyamma (1925) 48 Mad., 933 (where it was completed by
a surrender) ; Medai Dalavoy v. Medai Dalavoy A.I.R. 1927 Mad., 115;
Piramanayaga v. Arumuga A.I.R. 1929 Mad., 710; Mt, Anmole Kuer v.
Kamla Dut A.I.R. 1926 Pat., 392.

ip) See ante § 531.

( 9 ) Dowlut Kooer v. Burma Deo 22 W.R., 55, 14 B.L.R., 246
(note).

(r) Katama Nachiar v. Dorasingha (1871) 6 M.H.C., 310.

< 5 ) Chotay Lai v. Chunno LaU (1879) 6 I.A., 15, 4 Cal., 744;
Muttu Vaduga v. Doraisingha (1881) 8 I. A., 99, 3 Mad., 290.

PARAS* 333*336* J

DAUGHTER S SON.

661

and not by survivorship to her coheiress (/). So also other
daughters born in the family, such as the sister, the father’s
sister, the brother’s daughter, take absolutely (§ 614).

§ 536. The daughter’s son takes in default of the
daughter. Though he is only a bhinnagotra sapinda like a
sister’s son, or an aunt’s son, he is nearer in degree and from
ancient times, both in law and in popular practice, has
occupied a position, next to a son’s son (w). A verse of
Brihaspati emphasises the fact that just as a daughter suc-
ceeds in the presence of the father’s agnates {bandhus) ^
even so her son becomes the owner of his mother’s and
maternal grandfather’s wealth (v) .

A daughtei’s son can never succeed to the estate of his
grandfather so long as there is in existence any daughter who
is entitled to take, either as heir or by survivorship to her
other sisters (•w) . The reason is that he takes not as heir
to any daughter who may have died, but as heir to his own
grandfather, and, of course, cannot take at all so long as
there is a nearer heir in existence. For the same reason, sons
by different daughters all take per capita, not per stirpes;
that is to say, if there are two daughters, one of whom has

(t) V Mayukha, IV, 8, 10 Bulakhidass v. Keshavlal (1882) 6
Bom., 85, Bhagirathibai v. Kahnujirav (1887) 11 Bom, 285 FB;
Gulappa V. Tayawa (1907) 31 Bom, 453, Vithappa v, Savithn (1910)
34 Bom, 510, Kisan v Bapu AIR. 1925 Bom, 424, Jawahir Lai v.
Jarau Lai (1924) 46 All, 192 (Mayukha case).

iu) Mann, IX, 136, 139, Vas , XVII, 12, Mit , II, 2, 6, Smnti-
chandnka, X, 5, 6, II, 2, 28, V. May., IV, 8, 13; Vi^adachintamani,
294; See Bishwanath Prasad v. Gajadhar (1918) 3 P.L.J , 168, Thakoor
Jeebnath v. Court of Wards (1875) 2 lA, 163, 23 W R., 409; see
ante §478. Dr. Sarvadhikari (2nd edn., 683) says that Apararka
postpones the daughter’s son as a bandhu to all gotrajasapindas This
IS by no means clear, for, Apararka’s comment is (according to the
translation in 21 MLJ Journal, 315) “on failure of all these, the
deceased’s paternal grandmother after the daughter and the daughter’s
son” which would mean that the daughter’s son comes next to the
daughter who is placed by Apararka next to wife following Yajn.
According to Dr. Jolly, Vishnu does not mention daughter’s son as
heir (TLL, p. 201). The Mitakshara (II, ii, 6), the Smritichandrika
(XI, 11 , 15), the Vyavahara Mayukha (IV, viii, 13), the Viramitrodaya
(Setlur, p 412) and others cite a text of Vishnu expressly declaring
daughter’s son as heir. Dr Jolly's slightly different reading m XV,
47 comes to the same thing.

(r) Brih, XXV, 58; Jha, H.L.S., II, 493*4. In some parts of
Northern India, he is excluded by special custom, Punjab Customs^
16, 17, Raj Bachan v. Bhanwar Lalji A.l.R. 1929 Oudh, 296, 4
Luck , 690.

(w) Aumirtolall v. Rajonikant (1875) 2 I. A., 113, 15 B.L.R., 10,
23 W.R, 214; Baijnath v. Mahabir (1878) 1 All., 608; Sant Kumar
V, Deo Saran (1886) 8 All., 365.

Daughter's

sons.

Succeed
after all
daughters.

Take per
capita.

662

SUCCESSION UNDER MITAKSHARA LAW. [ CHAP. XII,

Several

daughter’s

sons.

three sons and the other has four sons, on the death of the
first daughter, the whole property passes to the second, and
on her death, it passes to the seven sons in equal shares (x).
And on the same principle, where the estate is impartible, it
passes at the death of the last daughter to the eldest of all
the grandsons then living, and not to the eldest son of the
last daughter who held the estate (y).

A daughter’s son. on whom the inheritance has once actually
fallen, takes it as full owner, and thereupon he becomes a
new stock of descent, and on his death the succession passes
to his heir, and not back again to the heir of his
grandfather (z). But if he should die leaving a son before
the last surviving daughter, that son could only succeed as
a bandhu after ail the gotrajas (a).

§ 537. The nature of the estate which is taken by
daughter’s sons under the Mitakshara law, where several have
inherited together, has been the subject of much discussion.
The Calcutta High Court in Jasoda Koer v. Sheopershad (b)
and the Madras High Court in Saminadha v. Thangathanni (c)
decided that two undivided brothers, succeeding to the
maternal grandfather’s estate, took, not as joint tenants with
the benefit of survivorship, but as tenants-in-common. Over-
ruling these decisions, it was held by the Privy Council in
Venkayamma v. V enkataramanayyamma (d) that where

ix) 1 W. MacN., 24; 1 Stra.H.L., 139; Dig., II, 546.

Succession per stirpes is laid down m the case of a partition
among a man’s male descendants, and in regard to the
distnbution of stridhana by special texts. The remoter gotraja sapindas
succeed in their own right and directly to the propositus, and take
per capita; per Telang, J. Nagesh v. Giirurao (1893) 17 Bom., 303,
305.

(y) Katama Nachiar v. Dorasinga Tevar (1871) 6 Mad. H.C., 310;

Muttu Vaduganadha v. Dorasinga Tevar (1881) 8 I.A., 99, 3 Mad., 290.
The doctrine stated in the Sarasvati Vilasa (§§632, 655, 709) that
property as soon as it passes to a daughter becomes unobstructed

heritage is expressly stated to be that of Lakshmidhara and not of

Sarasvati Vilasa and is not law.

(z) Muttuvaduganatha v. Periaswami (1896) 23 I. A., 128, 19
Mad., 451, 457 affirming 16 Mad., 11; Sibta v. Badn (1881) 3 All.,
134.

(a) Dharap Nath v. Gohmd Saran (1886) 8 All., 614; the son

of a daughter’s son may take in the absence of other heirs as a

bandhu, Krishnayya v. Pichamma (1888) 11 Mad., 287; Sheobarat v.
Bhagwati (1895) 17 All., 523; Krishnaswami v. Sreenivasa (1922)
42 M.L.J., 124 (Daughter’s son excludes daughter’s son’s son).

ib) (1890) 17 Cal., 33.

(c) (1896) 19 Mad., 70,

(d) (1902) 29 I.A., 156, 164, 165 ; 25 Mad., 678, 686, 687 reversing
(1887) 20 Mad., 207.

PAHA. 537 .]

daughter’s sons' estate.

663

4jnder the Mitakshara law, the two sons of a Hindu’s only
•daughter succeeded on their mother’s death to her father’s
•estate they did so jointly with the benefit of survivorship as
Xo an ancestral estate. The decision of the Judicial Committee
was distinguished by a Full Bench of the Madras High
Court in a decision where they held that it did not apply to
xhe descent of stridhana from a mother to her sons, or to
the descent of the property of a maternal uncle to the sons
of his sister, and that in each instance the sons took as tenants-
in-common without survivorship, though they were at the
lime living as members of a joint family (e). Construing
the Privy Council decision as holding that the property of
the maternal grandfather was ancestral properly in the hands
of the daughter’s son, the Madras High Court held that the
lattei’s son was joint owner in the property with his father
and was entitled to a partition of it (/). The Allahabad
High Court dissented from that view (g). In a recent case,
the Judicial Committee, approving of the Allahabad view,
held in accordance with the plain meaning of the
Mitakshara that the maternal grandfather’s property
is not technically ancestral property in the hands of the
daughter’s son who takes it bv inheritance and that therefore
his son IS not entitled to interdict his father’s aliena-
tion ih). Their Lordships, however, explained their previous
decision in Venkayainmas case on the ground that in that
case the brothers took the estate of their maternal grandfather
at the same time and by the same title, and there was ap-
parently no reason why they should not hold that estate
in the same manner as they held their other joint property.
The rule of survivorship which admittedly governed their
other property was held to apply also to the estate which had
come to them from then maternal grandfather (i).

(e) Karuppai Nachiarw Sankara Narayana (1904) 27 Mad., 300 F.B.
The Bombay High Court hab taken the ^ame view, Bai Parson v Bai
Somli (1912) 36 Bom, 424, see also Harihar Prasad v. Bholi (1907)
.6 C.L J , 383.

(/) Vythianatha v Yeggia 1 1904) 27 Mad, 382, 383, (1904) 27
Mad., 300 supra,

ig) Jamna v Partap (1907 ) 29 All, 667.

{h) Mohammad Husain Khan \ Kishva Nandan Sahai (1937) 64
I.A., 250, 119371 All, 655 approving (1907) 29 AIL, 667 supra,

(i) But m Venkayamma^s case, there was another coparcener,
Sami Rao, the father of Niladri and Appa Rao and the joint family
property was held by all the three coparceners and not by the two
daughter's sons alone and Sami Rao survived Niladri, see (1887)
20 Mad., 207, 208.

664 SUCCESSION OF PARENTS. [CHAP.

This explanation of the earlier decision is evidently
confined to two undivided brothers taking their maternal
grandfather’s estate and does not affect the decisions of the
Courts in India that where two undivided brothers take the
property of their mother or uncle or other relations as
obstructed heritage, they take only as tenants-in-common. The“
Privy Council have laid down in Baku Rani v. Rajendra
Baksh {]) that the principle of joint tenancy is unknown to
Hindu law except in the case of the joint property of an
undivided Hindu family governed by the Mitakshara law.
As a result of their Lordships’ explanation in Md. Husain
Khan v. Kishva Nandan (A), it must be taken that no new'
species of coparcenary property in which the male issue have
no interest, has been engrafted on the Mitakshara law as
an exception, but that it was a presumption of fact in the
earlier case that the property which they inherited from
their maternal grandfather was held by them in the same
way as they held their family property. The decision in.
V enkayamma! s case cannot be regarded as laying down any
rule of law. Of course the decision will not govern a case
where the sons are by different daughters and therefore of
different families.

§ 538. Parents: — ^The line of the descent from the owner
being now exhausted, the next to inherit are his parents. And
here, for the fiist time, there is a variance between the different
schools of law as to the order in which they take. The
Mitakshara gives the preference to the mother on the ground.'
of greater propinquity, and is followed in Mithila by the
Vivada Chintaniani; and this is stated by Mi. W. MacNaughteik
to be the law of Benares and Mithila (/). The Mayukha
prefers the father to the mother, but it is not followed in
Bombay, except where its authority is supreme as in Guzerat
and other parts (m). According to the Mitakshara law

Parents.

Mitakshara.

Benares and
Mithila.

Mayukha.

(;) (1933) 60 LA., 95, 8 Luck., 121.

(A:) (1937) 64 LA., 250, [19371 All., 655 supra. See §281, note (/).

(/) Mitakshara, II, 3. See note by Colebrooke; Vivada Chinta-
niani, 293, 294, 2 W. MacN., 55-n. See ante p. 39. The Sarasvati Vilasa
also follows the rule of the Mitakshara in preference to that of the
Smriti Chandnka, §§ 566-572. The Smriti Chandrika (XI, iii, 8-9)
prefers the father, upon the authority of a text of Brihat Vishnu, and'
this view is adopted in Pondicherry in regard to all direct ascendants.
The Madhaviya (§38) says “the two parents share the wealth”; and
Varadaraja also (§36). The Viramitrodavadll, 4,Setlur's ed , 413-418)'
differing from the Mitakshara makes the precedence of father or
mother depend on personal merit.

(m) V. May., IV, 8, § 14; W & B, 110, 448; Mandlik, 360, 378;
Balkrishna v. Lakshman (1890) 14 Bom., 605.

PARAS. 538-540.] SUCCESSION OF BROTHERS.

therefore, it is settled that the mother takes in precedence to
the father. An adoptive mother, as she is included in the
term ‘mother’, is preferred to the adoptive father (n).

§ 539. In Bombay, a stepmother is an heir to her step-
son, not indeed as his mother, but as a gotraja sapinda being
the wife of a gotraja sapinda, namely, his father (o). As
such, taking her place before the male in the next remoter
line, she is placed before the father’s father and even before
the brother’s widow, but after the widow of the lineal
descendant of the stepson and the brother’s gotraja descend-
ants. Where a husband having several wives expressly
adopts a son in conjunction with one of them, she is con-
sidered to be his mother, the others only being his step-
mothers. Consequently if he dies without nearer heirs, that
wife succeeds as his mother in preference to the others, though
herself junior as wife (p).

§ 540. Brothers: — Next to parents come brothers.
There are texts which show that at one time their position
in the line of heirs was unsettled, the brother being by some
preferred to the parents, while according to others, even the
grandmother was preferred (^) .

Among brothers, those of the whole blood succeed before
those of the half-blood since the latter aie, as the Mitakshara
puts it, remote through the difference of the mothers (r). If
there are no brothers of the whole blood, then those of the
half-blood are entitled according to the Mitakshara law ( 5 ),
except where the authority of the Mayukha is paramount as
in Guzerat and in the island of Bombay (^).

(n) Anandi v Hansuba (1909) 33 Bom, 404, Basappa v Gur-
lingawa (1933) 57 Bom, 74 (mothers of a divyayamubhyana adopted
boy inherit together).

(o) Kessarbai \ Valab (1880) 4 Bom, 188, 208, Russoobai v.
Zoolekhabai (1895) 19 Bom., 707, Rakuiabai v. Tuharam (1887) 11
Bom, 47, Appa]i v Mohanlal (1930) 54 Bom, 564 FB

(p) Annapurni N acinar v. Forbes (1895) 18 Mad., 277 affirmed in
(1900) 26 I A , 246, 23 Mad , 7.

iq) Mit., II, IV, Smriti Chandnka, XI, vi, 4-21; V. Ratnakara,
XXXIV, 10, Vivada Chintamani, 295, Viramit., Ill, 5, Madhaviya,
5 71; Sarasvati Vilasa, paras. 574-579.

(r) Mit , II. IV, 5.

is) A brother (bhrata) in Hindu law while it includes sons of the
same father by different mothers does not include the sons of the
same mother born to a different father, as there could be where re-
marriage is allowed. The latter are born in a different family
altogether, and are outside the category of heirs, Ekoha v. Kashi ram
(1922) 46 Bom., 716.

it) V. May., IV, viii, 16-17.

(S65

Stepmother.

Brothers.

Whole before
half-blood.

666

SUCCESSION OF NEPHEWS.

[chap. XII,

Mayuklia

rules.

Nephews.

The rule according to the Mayukha is: sons of full brothers
who are dead succeed along with full brothers and in default
of the latter, they are preferred to brothers of the half-blood
who take as coheirs with the paternal grandfather but only
after full brother, full brother’s son, grandmother and full
sister (u). The rule, however, does not go beyond brothers
and brother’s sons succeeding to the estate of a deceased
brother. Where the succession opens to the estate of a dist-
ant sapinda, a nephew would not be entitled to succeed along
with his uncle as reversionary heir (v) . As the joint
succession of the paternal grandfather and the half-brother
is not recognised by the courts (§ 555), it would follow that
the Mitakshara rule must be applied subject to the Mayukha
preference of the nephew of the full blood with the result
that the half-brother would succeed after the latter and befoie
the paternal grandmother.

§ 541. In default of brothers of the whole or half-blood,
the brother’s sons succeed. Nephews of the full blood are
preferred to those of the half-blood. The rule according to
the Mayukha has already been stated ( § 540) . According to
the Mitakshara and the Dayabhaga schools, no nephew can
succeed as long as there is any brother capable of taking,
the rule being universal that except in the case of a man’s
own male issue, the nearer sapinda always excludes the more
1 emote (m;). Where several brothers have succeeded to the
estate of their brother and one of them dies leaving sons,
they will of course be entitled on partition to a share in
their father’s right.

(u) V. May., IV, viii, 20. Borrodaile translates it as follows* “The
sons of a brother also if themselves fatherless at the time of the
paternal uncle's death”. Mr. Mandlik and Mr. Gharpure give a
different translation *Tf the sons of brothers have their fathers alive
at the time of the death of the paternal uncle”. Mr. Gharpure explains
that the rule of taking together is due to a different reading adopted
by Mr. Borrodaile. See Gharpiire’s Mayukha, page 113, note 7. The
reading adopted by Mr. Mandlik and Mr. (Gharpure would seem to
make it in line with the Mitakshara, II, iv, 9. In Jagubai v. KesarUd
(1925) 49 Bom., 282, the Court considers the difference in translation
and treats the matter as governed by the rule of stare decisis. See
Vithalrao v. Ramrao (1900) 24 Bom., 317, 338 overruled so far as it
decided that there is no difference between full blood and half-blood
under the Mitakshara in Garuddas v. Laldas (1933) 60 I.A., 189.

(v) Haribhai v. Mathur (1923) 47 Bom., 940, 943; Jagubai v.
Kesarlal (1925) ' ^49 Bom., 282, 287. See also Chandika Baksh v.
Muna Kunwar (1902) 29 I.A., 70, 74, 24 All., 273, 280.

(ta) Manu, IX. § 187 ; rMitakshara, II, 4, §9 7, 8;- Smriti Chandrika,
XI, 4, §8 22, 23, 26; Daya Bhaga, XI, 5, 88 2, 3, XI, 6, 8 1; D.K.S., I.
8, §1; Vivada Chintamani, 295; 1 W. MacN., 26; Pirthee v. Court of
W curds 23 W.R., 272. Mitakshara, II, 4, 89; Burham v. Punchoo 2
W.R., 123; Chandika Baksh v. Muna Kunwar 29 LA., 70, 24 All., 273*

|>ARA. 542.]

SUCCESSION OF GRANDNEPHEWS.

667

§ 542. The rule of succession as far as the brother’s son
IS clear and definite. Vijnanesvara and his successors pro-
perly enough style the succession upto the brother’s son as
the compact series of heirs (baddhakrama). As to the heirs
who succeed in their default, the relevant passages of the
Mitakshara are: “On failure of the brothers also, their sons
(tatputrah) (x) share the heritage in the order of the res-
pective fathers (ii, 4, §7)”. “If there be not even brother’s
sons ( putrah), gotrajas share the estate. Gotrajas are the
paternal grandmother and sapindas and samanodakas (ii, 5,
§ 1 ) ”. “On failure of the paternal grandmother, the gotraja
sapindas, namely, the paternal grandfather and the rest in-
herit the estate (ii, 5, § 3)”. “Here on failure of the father’s
descendants (santana), the heirs are successively the paternal
grandmother, the paternal grandfather, the uncles and their
sons (tatputrah) (ii, 5, §4)”. “On failure of the paternal
grandfather’s line ( santana) ^ the paternal great-grandmother,
the great-grandfather, his sons ( putrah) and their issue
(sunava) inherit. In this manner, up to the seventh, must
be understood the succession of samanagotra sapindas (ii, 5,

§5)” (y).

Succession
after brother’s
son.

The words putra, sunava, and santana which are used in
the above rules were variously understood and there was
a conflict of opinion as to the order of succession after
brother’s sons. In Surayya v. Lakshminarasamma (z) , it was
held that the word ‘sons’ in Mit., II, iv, 7 and II, v, 1 did not
include grandsons and a brother’s grandson was therefore
postponed to a paternal uncle’s son. This view was approved
by the same High Court in Chinnaswami v. Kunju {a). In
Kalian Rai v. Ram Chandar, the term, ‘brother’s son’ was
held to include a brother’s grandson and accordingly a
brother’s grandson was preferred to a paternal uncle’s son (6).
In Buddha Singh v. Laltu Singh, the Privy Council held in an

(x) According to the text of Yajnavalkya “brothers, and likewise,
their sons” {tatsutah) . Yajn., II, 135. See 37 All., 604, 614 P.C.

(y) “The word ‘descendants’ in Mr. Colebrooke’s translation is
in the original *santana* which means race, lineage, or posterity, and
is‘ still used among Hindus to mean male progeny without limitation.
Mr. Justice Telang in Rachava Kalingappa (1892) 16 Bom., 716
construes it as meaning “continuation”; other learned Sanskritists
interpret it to signify “an uninterrupted series” [of progeny or heirs].
Their Lordships have no doubt that Vijnanesvara has used it in the
sense of lineal male descendants. Sunavas, translated by Mr. Colebrooke

‘issue*, connotes the same idea.** Buddha Singh v. Laltu Singh
<1915) 42 I.A., 208, 37 AU., 604, 616.

( 2 ) (1889) 5 Mad., 293.

(a) (1912) 35 Mad., 152.

<6) (1902) 24 All.. 128.

668

SUCCESSION OF FATHER’S MOTHER. [CHAP. XII,

Paternal

grandmother.

elaborate judgment that under the Mitakshara (II, v, 4-5),
the great-grandson of a grandfather of a deceased person is
entitled to inherit in preference to the grandson of the great-
grandfather (c). The ground of decision was thus stated:
"Tn the Mitakshara as expounded in the Benares school, the
word putra and its synonym employed by Vijnanesvara in
connection with brothers and uncles must be understood in a
generic sense, as in the case of the deceased owner, and that
the descendants in each ascending line, up to the fixed limit,
at^ any rate to the third degree, should be exhausted before
making the ascent to the line next in order of succession”.

If the word ‘son’ means son, grandson and great-grandson,
then it would seem that brother’s son and uncle’s son must
include the great-grandson of the brother and of the uncle
respectively. But the Privy Council apparently accept the
explanation of Shyama Charan Sarkar that the term ‘brother’s^
son’ does not include all the three degrees of descent from
the brother but only from the father of both the deceased
and his brother id). Much more important is the opinion
of Apararka who places the brother, his son and grandson*
as the near sapindas in the father’s line and applies the same
rule to the grandfather’s and great-grandfather’s lines making
the succession ascend and on failure of them return to the^
remoter descendants in each line. In accordance with the^
ruling in Buddha Singh’s case therefore, the brother’s grand-
son comes next to the brother’s son (</^).

§ 543. After the compact series of heirs ending with the
bi other’s grandson, the paternal grandmother succeeds as the
first amongst the gotrajas and after her, the paternal grand-
father and his three male descendants, the paternal uncle, his
son and grandson — but the last three are now postponed to-
the son’s daughter, daughter’s daughter, sister and sister’s son-
by the Hindu Law Inheritance (Amendment) Act, 1929.

(c) (1915) 42 I. A., 208, 37 AIL, 604 supra; see Kashibai v.
Moreshwar (1911) 35 Bom., 389, following (1892) 16 Bom., 716 supra;
V enkateswara Rao v. Adinarayana (1935) 58 Mad, 323 (where it
was held that a father’s brother’s grandson is preferred to brother’s
great-grandson); Sher Singh v. Basdeo Singh (1928) 50 All, 904;
Ram Sumeran v, Kodai Das A.I.R. 1932 All., 117; according to the
Mithila law, the brother’s grandson comes in after brother’s son.
Shambhoodutt v. Jhotee S.D. of 1855, 382. See also Varadaraja, 36.
Madhaviya, §40; Kureem v. Oodung 6 W.R., 158; Oorkhya Kooer
Rajoo Nye 14 W.R., 208,

id) (1915) 42 I.A., 208, 223 supra, V enkateswara Rao v. AdU
narayana (1935) 58 Mad., 323; Soobramiah Chetty v. Nataraja (1928)
53 Mad., 61.

id^) Apararka translated in 21 M.L.J. (Jour.), 314; Sarvadhikari,
2nd ed., 506-507; Jolly, T.L.Lm 211-213, On this view the order in.
Table A is shown.

PARAS. 543-544.] SISTERS AND HALF-SISTERS.

669

The Act however has by evident oversight omitted to pro-
vide for the son’s daughter’s son, son’s son’s daughter,
daughter’s son’s son, son’s daughter’s daughter and daughter’s
daughter’s son though they are in the direct line and nearer
bandhus than the sister and her son who are named in the
Act (e).

§ 544. The Act is expressed to alter the order of suc-
cession in the Mitakshaia school in all the provinces. It
provides that the son’s daughter, the daughter’s daughter, the
sister and the sister’s son shall, in that order, ‘be entitled to
rank in the order of succession next after a father’s father
and before a father’s brother’ (e^). A son adopted after the
sister’s death by her husband is expressly excluded by way
of abundant caution. In Ram Adhar v. Sudesra^ a Full Bench
of the Allahabad High Court has held that the word ‘sister’
in the Act does not include a half-sister, either consanguine
or uterine (/).* This view has been followed in Mt, Kabootra v.
Ram Padarth (g), and the Madras High Court has also taken
the same view (h). But a Full Bench of the Nagpur High
Court has held that the term ‘sister’ in the Act includes
a half-sistei and ‘sister’s son’ includes a half-sister’s son (i).
In Rarneshwar v. Mt, Canpati(j)^ Tek Chand, J, refer-
ring to the Allahabad decision, expressed doubts as to Us
soundness The grounds of decision given by the
Allahabad Full Bench are that the word ‘sister’ in the
English language ordinarily means ‘a sister of the full blood’
and that if ‘sister’ included a half-sister, then the sister and
the half-sister would take together, which would be contrary
to the Mitakshara law. Neither assumption is coriect. In
interpreting a statute altering the rules of succession in Hindu
law, it must be presumed that the Legislature used the ex-
pressions in the same sense in which they are used in Hindu
law and in Hindu society. Theie does not appear to be
any valid reason to exclude the half-sister and her son from
the operation of the Act. Hindu law recognises no difference
between full blood and half-blood except in a competition

(e) Kalimuthu v. Ammamuthii (1935) 58 Mad, 238, 251 See
Appx. 11

(el) The Act does not affect the Dayabhaga law, Sec 1 (2)

(/) (1933) 55 All, 725 (F.B.) ; Mt, Sahodra v. Ram Babu AIR.
1937 All. 655.

ig) (1935) 11 Luck., 148, 1935 Oudh, 332.

(h) Angamuthu v. Sinnapennammal 1938 M.W N., 44, A I.R. 1938
Mad., 364

(i) Amrut V Mt Thagan A I.R. 1938 Nag., 134 F.B.; Shankar v.
Raghoba A.I R. 1938 Nag., 97.

(;) (1937) 18 Lah., 525, 534.

Rights of
half-sister and
her son under
the Act.

670

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XH,

inter se (k) . As was held by the Judicial Committee in
Raghuraj Chundra v. Rani Subadra, in interpreting an Act
of the Indian Legislature dealing with Hindu law, the per*
sonal law of the parties is to be taken into account save
where a contrary intention clearly appears (/). The sug-
gested difficulty of the half-sister and the sister taking together
under the Mitakshara law vanishes if the Act is read in the
light of Hindu law, according to which a full-sister will ex-
clude a half-sister and only in default of a full-sister, a half-
sister will succeed. Evidently the English rule of construction
has been misconceived, for according to it, a description by
relationship will include half-blood in the absence of a
contrary indication (/n). In Grieves v. Rawley, Turner, V.C.,
expressed the opinion that the meaning which is attributed
to the terms ‘brother’ and ‘sister’ in the dictionaries is not
the meaning in which the term is legally used (/i). Brothers
and sisters of the half-blood before the Adnjinistration of
Estates Act, 1925, were and after the Act are, capable of
taking as heirs, the half-blood taking next to the full*
blood (o) . On the same grounds the expression ‘sister’s son’
in the Act will include a half-sister’s son, and on the view
expressed by the Privy Council in Jatmdra v. Nagendra that
the sons of a step-sister share equally with the sons of a
full sister (o^), there is even less reason for the suggested
difficulty. The decision of the Nagpur High Court therefore
is to be preferred to the decisions of the Allahabad and
Madras High Courts.

§ 545. According to the scheme of the Mitakshara, after
the male descendants of the father to the third degree are
exhausted, the succession ascends. Each ascending line begins
with a female and each has to be exhausted in accordance with
the rule of propinquous sapinda relationship before the next
in order can take; so that the paternal grandfather and his
three male descendants take first in that line. On failure of
the paternal grandfather’s line, the succession again ascends
to the paternal great-grandmother, paternal great-grandfather

(A;) Jatmdra Hath v. Nagendra Nath (1932) 58 LA., 372, 375, 59*
Cal., 576 approving Bhola Nath v. Rakhal Das (1886) 11 Cal., 69.

(/) (1927) 55 LA., 139, 145, 149, 32 C.W.N., 1009.

(m) Grieves v. Rawley (1852) 68 E.R., 840, 10 Hare 63 (‘the
description of nephews and nieces includes the child of a brother or
sister of the half-blood’).

in) (1852) 68 E.R., 840, 855 ; 28 Hals., Ist edn., p. 739.

io) 10 Hals., 2nd edn.. 586, 614.

(oi) (1932) 58 LA., 372, 375, 59 Cal., 576.

PARA. 545.]

ORDER OF SUCCESSION.

671

and their three male descendants (p). Mr. Harrington
in Rutcheputty Dutt Jha v. Rajunder Narain Rae (^),
considered that each line should be continued upto the
seventh degree, for instance, the father’s sixth descendant
must be exhausted before the succession ascends to the
grandmother and the grandfather and their descendants.
In Buddha Singh v. Laltu Singh, the Privy Council,
while not finally deciding the question, observed that
Mr. Harrington’s view appeared to contravene the rule
of Manu (r). Kumaraswaini Sastri, J., in Soobramiah
Chetty V. Nataraja Pillai ( 5 ) and Varadachariar, J.,
in Venkateswara Rao v. Adinarayana (t) held that in-
heritance descends only to three male descendants of
each ancestor and on failure of the third, it ascends. The
same view has been taken by the Allahabad High Court (?x).
There can be no doubt whatever that so far as the deceased
owner himsel( is concerned, after his great-grandson, in de-
fault of the specially named heirs like the daughter and the
daughter’s son, the succession ascends to the parents. It
would be anomalous if while the fourth to the sixth des-
cendants of the man himself do not exclude the father’s line,
the father’s fourth to sixth descendants should exclude the
grandfather’s line. There can be no doubt that, as Telang J ,
thought, in the Mitakshara, II, v, 4-5, it is laid down that
the propinquity of gotrajas is to be determined by lines of
descent, the nearer line excluding the more remote (v).
There is no inconsistency between this rule and the
rule that each line should be continued in the first
instance only to three degrees of descent, any more than
there would be in the samanodaka descendant of a nearer
line being excluded by a sapinda descendant of a remoter
line. The distinction therefore appears to be between the
nearer and the 1 emote divisions of sapmdas.

The other ground suggested by the Privy Council in
Buddha Singh v. Laltu Singh for preferring the great-grand-
son of the grandfather to the grandson of the great-grand-
father on the authority of the Viramitrodaya is that in

(p) Buddha Singh v. Laltu Singh (1915) 42 I. A., 208, 224, 37 All ,
604, Sarvadhikan, 2n<l edn., 522-530, Jolly, T.L L., 211213.

iq) (1839) 2 MIA.. 132, 158.

(r) (1915) 42 I.A., 208, 221, 37 All., 604. See §556.

(s) (1930) 53 Mad.. 61.

(t) (1935) 58 Mad.. 323, 331.

(u) Ram Sumeran v. Kodai Das A.I.R. 1932 AIL, 117.

(r) Rachava v. Kalingapa (1892) 16 Bom., 716, 719.

672

ORDER OF SUCCESSION.

[chap. XII,

Samanodakas.

Bandhus.

judging of the nearness of blood relationship or propin-
quity among the gotrajas, the test to be applied to discover
the preferential heir is the capacity to offer oblations (w).
But the Viramitrodaya, in determining the order amongst gotra-
jas, applies it nowhere and the conclusion in that very passage
which was cited, after discussing the proximity of the grand-
son and the great-grandson, is that it is not the criterion as the
right of heritage of the grandson and the great-grandson is by
birth upon the authority of the texts (x) . On the other hand,
dealing with the succession of brothers and brother’s sons,
sapindas, samanodakas and bandhus, the Viramitrodaya stresses
the view that the greatness of propinquity is alone the criterion
of succession in the absence of special provision (y). The
true view is stated in the most recent case of Balasubramania
V. Subbayya that agnatic succession under the Mitakshara law
‘‘depends solely upon proximity of blood connection and the
Bengal doctrine of religious efficacy has no application” ( 2 ).
The greater propinquity of the first three descendants is
admitted in the texts dealing with the term ‘piUra*^
and they are the sapindas par excellence (a). Whatever
the reason is, the distinction has from ancient times existed
between the first three degrees and the fourth to the sixth.
Manu’s rule which is repeatedly relied upon in the Mitakshara
gives effect to it. Therefore after three degrees of descent
in the line of the three ancestors are exhausted, the fourth
to sixth descendants of the man himself and of his three
paternal ancestors would, by reason of their propinquity,
be entitled to inherit in that order. On this basis, the order
of succession amongst sagotra sapindas is given in Table A.

§ 546. The order of succession amongst samanodakas
who are shown in Table A and who come in as heirs only
after all the sapindas are exhausted is governed by the same
principles and rules as regulate the succession among
sapindas.

§ 547. Failing samanodakas, the bandhus or bhinna-
gotra sapindas of the deceased succeed (Table B).

iw) (1915) 42 I.A., 208, 227-228, 37 All., 604, 623.

(x) Viramit., IT, i, 23-a (Setlur’s ed., 342-343).

(y) Viramit., Ill, v, 1-2; III, vii, 5; Setlur’s ed., 419, 420, 424.
( 2 ) (1938) 65 I.A., 93, 102, 42 C.W.N., 449, 455.

(a) Manu, IX, 186-7; the division of sapindas and sakulyas in
Manu and Baudhayana was based on this distinction.

t>ARA. 547.1 SUCCESSION AMONG BANDHUS.

6?3

The order of succession amongst bandhus under the
Mitakshara law has been, till recently, somewhat obscure.
Of the three classes of bandhus, viz., atmabandhus, pitru-
bandhus and matrubandhus, it is now settled that they
take in the order specified. A pitrubandhu does not
succeed until the class of atmabandhus is exhausted; a
matrubandhu does not until both the other classes are exhaust-
ed (6). This order of the classes cannot be varied by an
appeal to individual propinquity or to the doctrine of religi-
ous efficacy. In Muthusami v. Muthukumarasami, it was held
by the Madras High Court that a maternal uncle of the half'
blood who IS an atmabandhu, succeeds in preference to the
father’s paternal aunt’s son who is a pitrubandhu. Four
rules were laid down: (1) that those who are bhinnagotra
sapindas, or related through females born in or belonging
to the family of the propositus are bandhus; (2) that, as
stated in the text of Vriddha Satatapa or Baudhayana, they
are of three classes, viz., atmabandhus, pitrubandhus, and
matrubandhus, and succeed in the order in which they are
named; (3) that the examples given therein are intended to
show the mode in which nearness of affinity is to be
ascertained; and (4) that as between bandhus of the same
class, the spiritual benefit they confer upon the propositus is,
as stated in the Viramitrodaya, a ground of preference (c).
This decision was affirmed by the Judicial Committee (d) .
Both in Vedachela v. Subramania (e) and in Balasubrah-
manya v. Subbayya (/), their Lordships approved of the
propositions enunciated by Muthusami Ayyar, J , in Muthu-
sami V. Muthukumarasami (g) as furnishing ‘a safe guide’.

Amongst bandhus of each class, the rule of propinquity
is of course the criterion for determining the preference. In
the latest case(y), the Privy Council observed, “It is also cleai
that the Viramitrodaya, Ch. Ill, pt. vii (5), which is the

(6) Muthusami v. Muthukumarasami (1896) 23 I. A , 83, 19 Mad.,
405 atfg. (1893) 16 Mad., 23, Krishna Ayyangar v. Venkatarama
(1906 ) 29 Mad, 115 (paternal aunt’s daughter’s son who is an atma^
bandhu preferred to father’s paternal aunt’s son who is a
pitrubandhu) ; Adit Narayan v Mahabir Prasad (1921) 48 I. A., 86,
6 Pat. L.J , 110 (maternal aunt’s grandson being an atmabandhu
preferred to mother's paternal aunt’s son, a matrubandhu ) , Bai Vijh
V. Bat Prabhalakdimi (1907) 9 Bom L.R., 1129.

(c) (1893) 16 Mad., 23, 30 supra.

id) (1896) 23 I A , 83, 19 Mad., 405.

ie) (1921) 18 1 A, 319, 361, 44 Mad, 753, 767

(/) (1938) 65 I.A., 93, 42 C.W.N., 449, A.I.R. 1938 P C., 34, affiimg.
A.I.R. 1935 Mad., 1015, 69 M.LJ., 632.

(g) (1893) 16 Mad, 23 supra.

45

Rule of
propinquity.

674

NEARER UNE, NEARER DEGREE.

[chap. Xtl,

Nearness
of degree.

Nearer line
excludes more
remote.

principal authority for the well-recognised priority of atma-
bandhus over the two other classes, clearly bases it on pro-
pinquity. Their Lordships think therefore that it would be
impossible to say that under the Mitakshara, the principle of
propinquity does not apply beyond agnatic succession”.

§ 548. The first rule of preference is therefore the near-
ness of degree (/t), and that is easily ascertained
as between the descendants of the same ancestor or of
ancestors of an equal degree when the nearer in degree will
exclude the more remote. But as between the descendants
of a nearer ancestor and of a remoter ancestor, the degrees
as computed from each common ancestor to the descendant
are necessarily deceptive. In Muthusami v. Muthukumara-
sami, Muthusami Iyer, J., observed, “Though sons born
in the family are all gotrajas, yet the Mitakshara regulates
the succession when there is competition between them with
reference to the nearness or remoteness of propinquity, as,
for instance, between a brother and a paternal uncle’s son.
It is not clear why this analogy should be ignored in the case
of daughters born in the family, and why the father’s sister
and the grandfather’s sister should be treated as related to
the propositus in the same degree of affinity. Nor is it
reasonable to regard one’s own sister’s son and one’s grand-
father’s sister’s son as related in the same degree” (0-

§ 549. The rule as to the nearness in degree therefore
has to be supplemented and controlled by the further
rule that the nearer line excludes the more remote.
Accordingly, in Balusami v. Narayana, it was laid
down that the first principle in the law of inherit-
ance is that the nearer line excludes the more remote. The
competition in that case was between the owner’s sister’s son’s
son and the maternal uncle’s son and the former was pre-
ferred (/). In Vedachela^s case(i), the Privy Council did
not disapprove of the decision in Balusami’ s case that
the sister’s son’s son was nearer in degree to the propositus
than the maternal uncle’s son. Their Lordships only dis-
approved of the second principle laid down in that
rase that amongst bandhus of the same class in all cases,

(A) (1938) 65 LA., 93, 101 suprd affirmg. 69 M.L.J., 632, 651;
Jatindranath v. Nagendranath (1931) 58 I. A., 372, 59 Cal., 576;
Chengiah v. Subbaraya (1930) 58 M.L.J., 562; Kalimuthu v. Amma-
muthu (1935) 58 Mad., 238.

(/) (1893) 16 Mad.. 23, 29-30.

(y) (1897) 20 Mad., 342; bee also Mohandas v. Krishnabai (1881)
5 Bora., 597.

(A) (1922) 48 I.A., 349, 361, 44 Mad., 753.

t>ARA. 549 .] SUCCESSION UNDER MitAkskARA LaW.

6W

those who are ex parte paterna take before those who are
ex parte rnaterna. In Krishna Ayyangar v. Venkatarama (/)
which was approved by the Privy Council in Adit Narayans
case (m), it was held that it was a cardinal principle of
Hindu law that the nearer line excludes the more remote.
In that case, the competition was between the paternal aunt’s
daughter’s son who is an atniabandhu and the grandfather’s
sister’s son who is a pitrubandhu. No doubt the preference
of an atmabandhu to a pitrubandhu was sufficient to deter-
mine the priority in that case.

This view was followed and reaffirmed in Kalimuthu v.
Ammamuthu after a fresh examination of the authorities It
was held in that case that as between the daughtei’s daughter’s
son and the sister’s son, both being atmabandhus. the former
as the cognate descendant of the man himself is to be
preferred to the latter who is only a cognate descendant of
his father. It was further held that the principle of spiritual
benefit cannot override the rule that the nearer line excludes
the more remote (n). The decision in Uma Shankar v
Nageshvari (o), which was mainly based on the decision of
the Patna High Court which was reversed by the Privv
Council in Adit Narayan v. Mahabir Prasad (p), can by no
means be regarded as correct. In that case, the maternal
uncle was preferred to the sister’s daughter’s son of
the propositus. Mullick, J., considered the sister’s
daughter’s son to be a pitrubandhu (^), and Jwala
Prasad, J., also doubted whether he is an atmabandhu (r)
Both the learned judges considered that the descendant of an
atmabandhu need not be an atmabandhu, even when he is
within the five degree limit ( 5 ). The two judges, while dif*

(/) (1906) 29 Mad., 115, Maharajah of Kolhapur v. Sundaram
(1925) 48 Mad., 1, 77, 223 (daughter’s son excludes sister’s grandson).

(m) (1922) 48 I A., 86, 6 Pat L J., 140.

(n) (1935) 58 Mad, 238, see also Dattatraya v. Gangabai (1922)
46 Bom., 541 (son’s daughter’s son preferred to father’s daughter’s
daughter). In Chengiah v. Subbaraya (1930) 58 M.L.J , 562, where
the rival claimants were the mother’s paternal aunt’s grandson and
the mother’s paternal uncle’s great-grandsons, both being matrubandhus,
the former was preferred to the latter It was observed that the test
of spiritual benefit can only apply as between bandhus of the same
class when they are equal in degree.

( 0 ) (1918) 3 Pat.L.J., 663 (F.B.).

(p) (1916) 1 Pat.L.J., 324, reversed in (1921) 48 I.A., 86, 6
Pat.L.J., 140.

(q) (1918) 3 Pat.L.J., 663, 685.

(r) 76., 725.

( 5 ) Ib., 726.

676

SPIftltUAL fiCINEPIt AMONGST EANOttUS. tcHAP. Xtt,

The test o£

religious

efficacy.

fering as to how the degrees were to be computed (i) , erron-
eously considered that the maternal uncle was nearer in
degree than the sister’s daughter’s son. To compare degrees
of descent computed from the father of the propositus with,
say, degrees computed from his great-grandfather is obviously
a fallacious mode of approaching the problem. While the
limits of agnate and cognate relationship are ascertained by
computing degrees from the common ancestor so as to
ascertain whether a man is a sapinda or a bandhu, the ques-
tion of nearness of degree as between two bandhus cannot
be solved by the reckoning of degrees from nearer and
remoter ancestors and treating them all as of equal validity
in ascertaining propinquity (a). The Mitakshara itself
recognises the distinction between the descendants of the
nearer line and those of a remoter line by recognising the
former as atmabandhus and the latter as pitrubandhus or
matrubandhus taking only after the descendants of the nearer
line. But while the six degrees of agnatic descendants of a
man himself or of any of his ancestors have been divided
into two groups, no such division is possible in the case of
cognate descendants who are only four in number in each
line. The only logical and convenient rule therefore is that
the nearer line excludes the more remote amongst bandhus.

§ 550. It is now settled that when the test of proximity
fails as between bandhus of equal degree and only when
it fails, the principle of religious efficacy is an admissible
test for the purpose of determining the preference. In
Vedachela v. Subrahmanya (v), the maternal uncle was held
to be nearer in degree than the paternal aunt’s son’s son and
the reference to religious benefit was only an additional and
a superfluous consideration. In Jatindra Nath v. Nagendra
Nath {w) it was held (1) that as between the father’s
half-sister’s sons and the mother’s sister’s son, the former
are the preferable heirs; (2) that as between bandhus of
the same class who are equal in degree, the test of religious

(f) Ib; 682. Jwala Prasad. J.*8 computation of degrees was wrong.
See ante i 112, note (m).

iu) The decision in Sham Dei v. Birbhadraprasad (1921) 43 AIL,
463, where the paternal aunt’s son’s son was held to be nearer than
the sister’s daughter’s son is even more open to criticism; for, while
the sister’s daughter’s son is four degrees removed from the father
of the propositus, the paternal aunt’s son’s son is four degrees removed
from his grandfather; and neither of them offers pindas to the ancestors
of the deceased. The headnote to the report is wrong.

M (1922) 48 I.A., 349, 44 Mad., 753.

(w) (1932) 58 I.A., 372, 59 Cal., 576 affirming (1927) 55 Cal., 1153.

PARAS. 550 - 551 ] ORDER OF SUCCESSION.

677

efficacy is applicable (i»;) ; and (3) that the efficacy of funeral
offerings is a safer test than the preference for bandhus ex
parte pater na (y) . Whether, in any case under the Mitakshara
law, religious efficacy should be held to be a test or measure
of propinquity has already been fully discussed with refer-
ence to the Smritis and all the later Sanskrit authorities
(§§485493).

In the latest case before the Judicial Committee, the con-
testing claimants were the maternal uncle and the father’s
sister’s son. The former was held to be the preferable heir ( 2 ) .
Explaining the decisions in VedachelcCs case and Jatindia-
nath^s case (a), the Privy Council not only made it clear
that the doctrine of religious efficacy has no appli-
cation to cases of agnatic succession under the Mitakshara
law, but confined the test only to cases where the degree of
blood-relationship amongst bandhus furnished no certain
guide and reiterated the view that the principle of propinquity
in blood is the primary test in cases of bandhu succession as
well.

§ 551. Where the bandhus are equal in degree, religious
efficacy will not in all cases resolve the difficulty and the
Mitakshara lays down no rule of preference as between mem-
bers of the class who are in equal degree of propinquity to

(r) “It IS, their Lordships think, a mistake to suppose that the
doctrine of spiritual benefit does not enter into the scheme of inherit-
ance propounded in the Mitakshara. No doubt propinquity in blood
is the primary test, but the intimate connection between inheritance
and funeral oblations is shown by various texts of Manu (see, for
instance, Ch. IX, 136, 142), and the Viramitrodaya brings in the con-
ferring of spiritual benefit as the measure of propinquity where the
degree of blood relationship furnishes no certain guide”* (1931) 58
I.A., 372 , 379 , 59 Cal , 576 supra y Gaddam Ademma v Hanumareddi
[1938] Mad , 260, where father’s half-sister’s son was preferred to
mother’s brother’s son on ground of the former’s religious efficacy.

(y) “It may well be that the application of a rule of general pre-
ference, in the case of bandhus, of those claiming ex parte paterna . . .
will, in the majority of cases, produce the same result as the test of
religious efficacy of offerings, but their Lordships think that in adopt-
ing the latter they are on surer ground, and are following the precedent
of previous rulings of this Board. There may be cases in which this
rule will leave the question still undecided, and in which the other
rule may have to be considered, but this is not so in the present case”:
(1932) 58 I.A., 372, 379, 59 Cal., 576 supra,

(z) Balasubrahmanya v. Subhayya (1938) 65 I. A., 93, 42 Cal. W.N.,
449 P.C., affirmg. A.I.R. 1935 Mad., 1017, 69 M.L.J., 632; the
decisions to the contrary in Sakharam v. Balknshna (1925) 49 Bom.,
739 and in Ram Nath v Duni Chand A.I.R. 1934 Lah., 622 (2) arej
not good law.

(a) (1921) 48 LA„ 349, 44 Mad., 753 supra, 58 LA., 372.

Uthumalai

case.

678

Ex parte
paterna*

Summary*

PRINCIPLES REGULATING PREFERENCE. [ CHAP. XII,

the propositus, nor does it suggest that they are all to share
equally (6). Where the tests of nearness of degree and of
line fail, the general preference of Hindu law for relations
ex parte paterna would appear to be a proper and adequate
test of propinquity. But in Jatindra NatKs case, while the
Judicial Committee regarded it as quite an intelligible test
— one too supported by considerable volume of authority,
they have placed the test of religious efficacy before
it. Accordingly amongst bandhus of the same class, equal
in degree, where the test of religious efficacy fails,
bandhus ex parte paterna are to be preferred to those ex parte
materna (c) .

Another rule was laid down in Tirumalachariar v. Andal
AmmaU that the claimant between whom and the stem there
intervenes only one female link should be preferred to that
claimant who is separated from the stem by two such links.
It was accordingly held that a daughter’s son’s son will have
preference over a daughter’s daughter’s son (d). This view
is not followed in Bombay where amongst bandhus propin-
quity is the sole test and bandhus of equal propinquity share
equally even though they are of different classes of
relation (d^).

§ 552. The result of these and other authorities may be
summarised. As between bandhus of the same class, the
following five rules will apply:

(1) A nearer ancestor and his descendants exclude a
remoter ancestor and his descendants (e). The descendants
of the deceased owner himself are preferred to the descend-
ants of his paternal and maternal ancestors.

(6) (1932) 58 I. A., 372, 59 Cal, 576 supra There does not appear
to be any reason why when agnates or cognates aie of equal degree
of propinquity, they should not share equally. The son, grandson and
great-grandson who are by a special text, of equal propinquity, share
together. Nilakantha bases his joint successions on equal propinquity.
So too, on the death of a dwyayamushyayana, his adoptive and natural
mothers, being equally near, inherit equally (§225). See (f/i) infra
In Mithila, sons and unmarried daughteis inherit a woman’s ayaiitaka
stridhana equally

(c) Narasimma v. Mangammal (1889) 13 Mad., 10; Sundrammal
V. Rangasami (1895) 18 Mad., 193; Balusami v Narayana (1897) 20
Mad., 342; Saguna v. Sadashiv (1902) 26 Bom., 710, 715; Ram Charan
V. Rahim Baksh (1916) 38 All., 416; Kalimuthu v. Ammamuthu (1935)
58 Mad.. 238.

(d) (1907) 30 Mad., 406, 407; Rami Reddi v. Gangi Reddi (1925)
48 Mad., 722^ Chengiah v. Subbaraya (1930) 58 M.L.J., 562, 1930
Mfad*, 555.

(di) Rajeppa v. Gangappa (1923) 47 Bom , 48; Vithal Tukaram
V. Balu Bapu (1936) 60 Bom., 671, 678.

(e) Where the ancestor is an agnate it is his cognate descendants
alone that can inherit as bandhus.

PARAS. 552-553.]

FEMALE BANDHUS.

679

(2) As between descendants of the same ancestor, or
ancestors of an equal degree, the nearer in degree excludes
the more remote.

(3) As between bandhus who are equal in degree and
are also descendants of the same ancestor or of ancestors of
equal degree, a bandhu who confers greater spiritual
benefit on the deceased is to be preferred to one who confers
less or none.

(4) Where the test of religious efficacy fails, bandhus ex
parte pater na are preferred to bandhus ex parte materna.

(5) All other considerations being equal, he between
whom and the common ancestor no female intervenes (e^)
will be preferred to one between whom and the common
ancestor one female intervenes, and the latter again will be
preferred to the bandhu between whom and the common
ancestor two intervene.

On the basis of the foiegoing rules. Table B shows all
the male bandhus. The Arabic numerals attached to them
mark the order in which it is either decided or suggested
that they should rank inter se in accordance with the prin-
ciples of the Mitakshara law. (See also Appx. II).

§ 553. Except the son’s daughter, daughter’s daughter and
the sister whose rights of succession are settled by the Hindu
Law of Inheritance (Amendment) Act, 1929, all female bandhus
are recognised as heirs at any rate in Madras and Bombay,
if not in the other provinces where they appear to be
excluded (/). Such female bandhus come in only after the
male bandhus (/^) . The order of succession amongst them will
be regulated by the same rules as govern succession amongst
male bandhus. In Bombay, however, in Saguna v. Sadashiv,
the father’s half-sister was preferred to the mother’s brother
on the ground that a female bandhu on the father’s side must
be preferred to a male bandhu on the mother’s side, thoJigh
among bandhus on the same side, male bandhus take pre-
cedence over female bandhus (g). In Kenchava v. Giri-
mallappa, a case from Bombay (A), the Privy Council de-

(pi) The preference of the paternal aunt’s son to the maternal
uncle’s son is no exception, for that comes under rules (3) and (4)

(/) Tirath Ram v. Kahan Devi (1920) 1 Lah., 588 where the
question was not considered as closed.

(/t) Rajah Venkata v. Raja Surenani (1908) 31 Mad, 321;

Kenchava v. Girimallappa (1924) 51 I. A., 368, 48 Bom, 569, affirmg.
(1921) 45 Bom., 768; Balknshna v. Ram Krishna (1921) 45 Bom., 353;
Narasimma v. Mangamma (1889) 13 Mad., 10; Chinnammal v. Ven-
katachala (1891) 15 Mad., 421; Lakshmanammal v. Thiruvengada
(1882) 5 Mad., 241; Avudai v. Ramalinga A.I.R. 1926 Mad., 1163.

(g) (1902) 26 Bom., 710.

(h) (1924) 51 I.A., 368, 48 Bom., 569. '

Female

bandhus.

680

SUCCESSION UNDER MITAKSHARA UAW. [ CHAP. XII,

Succeed after
males.

cided that a father’s sister’s son succeeds in preference to the
father’s brother’s daughter and that amongst bandhus of the
same class and degree a male was to be preferred to a female.
Evidently it would have made no difference if the female bandhu
was nearer in degree as the decision in Rajah V enkata v. Rajah
Surenani (i) was approved and was held not to conflict with
Saguna v. Sadashiv, because there was no conflict between
paternal and maternal bandhus. The question, however,
which of the two conflicting principles, the paternal over
the maternal line as in Saguna v. Sadasluv or the prefer-
ence of the male over the female sex as in Balkrishna v.
Ramkrishna (j) is to prevail was left open. But in Saguna
V. Sadashiv both the claimants were atmabandhus.
Vedachela*s case (&) has finally overruled the view that
amongst bandhus of the same class, those ex parte paterna
should be preferred to those ex parte matema. There is
nothing in Kenchava v. Girimallappa (/) to qualify that
decision. It would seem therefore that the decision in Bal-
krishna V. Ramkrishna (/) that as between the mother’s
sister’s^ son and the brother’s daughter, the former has pre-
cedence, would seem to be right as both are atmabandhus.
The preference of the male over the female sex would override
the rule that the nearer line excludes the more remote.

The female bandhus in each class will succeed after all
the male bandhus in that class are exhausted. But
to postpone them to the male bandhus of all the
three classes would involve the introduction of a fourth class
of bandhus composed of females only for which there is no
warrant whatever. The Mitakshara divides all bandhus into
three classes only. A female bandhu must necessarily be
either an atmabandhuy a pitrubandhu or a matrubandhu.
And as amongst male bandhus, so amongst female bandhus
class propinquity and individual propinquity will prevail; and
the rules relating to the nearer degree, the nearer line and
the preference of a bandhu ex parte paterna will also apply
(§552). But in no case it would seem can religious efficaev
be a measure of propinquity in a competition between female
bandhus. The dicta in some of the Madras cases that female
bandhus come in^only after all the male bandhus are ex-
hausted do not mean that the male bandhus of all the three
classes should be exhausted, for no question arose of a com-

(i) (1908) 31 Mad., 321. ~~ ”

(;) (1921) 45 Bom., 353.

ik) (1922) 48 LA., 349, 44 Mad., 753.

(/) (1924) 51 I.A., 368, 48 Bom., 569.

PARAS, 553-554.]

BOMBAY LAW.

petition between a female atmahandhu and a male pUru^
bandhu or matrubandhu (m) .

§ 554. Bombay Law: — Accoiding to the Mitakshara law
as administered in Bombay, after the paternal grandmother,
the sister comes in as an heir (n). And sisters of the half-
blood succeed immediately after sisters of the full -blood
where the Mitakshara governs (o). Wheie the Mayukha is
supreme, the half-sister comes in, it is said, after the half-
brother and before the paternal uncle (p) . But as already
pointed out ( § 540) , it is not clear where the place of the
half-brother is, as his joint succession with the grandfather
is no longer in force (q) (§ 555). Sisters take equally inter
se without any such preference for the unendowed over the
endowed, as exists in the case of daughters (r) .

The Hindu .Law of Inheritance (Amendment) Act, 1929,
must on the face of it be taken to alter the Mitakshara
law in the Bombay Presidency as well. Son’s daughter,
daughter’s daughter, sister and sister’s son will rank on that
view next after the paternal grandfather. But in Shidramappa
V. Neelawa, notwithstanding the Act, it was held that the
sister inherits, as before the Act, after the paternal grand-
mother and before the paternal grandfather ( 5 ). This view
is open to the objection that the sister’s place before
the Act was not a right covered by the saving of any special
family or local custom in s. 3 thereof, but was only due to
the interpretation of the Mayukha and the Mitakshara by the

{m) Muttuswami Ayvar, J, referred to female bandhus as ‘irrei?ular
bandhiis* in Sundrammal v. Rangasami (1895) 18 Mad, 193, 198-9. It
was correctly stated by the same learned judge in Balamma v PuJlayya
(1895) 18 Mad , 168, 170 The exact view of the Madras High Court
was fully explained in Venkatasubramania v Thayarnmmal (1898)
21 Mad , 263 which laid down that female sapindas belonging to a
different gotra are strictly hhinnagotra sapindas or bandhus within
the meaning of the Mitakshara

(n) She comes in as a gotraja sapinda. See ante § 507

(o) W & B, 440; Vinnyak v Lakshmibai (1861) 1 Bom HC. 117;
affirmed 9 M.I.A , 516, 3 W R. (P.C.), 41; Sakharam v. Sitabai (1879)

3 Bom, 353; Dhondu v Gangabai, ib , 369; Kesserhai v Valab (1880)

4 Bom., 188, 198, ib , 210, 214; Jana v. Rakhma (1919) 43 Bom., 461

(p) (1880) 4 Bom., 188, 207 supra; Trikam Purshottam v Natha
Daji (1912) 36 Bom., 120.

iq) Apparently the view in Sakharam v. Sitabai (1879) 3 Bom.,
353 that ‘brothers’ include ‘sisters’, though erroneous where the
Mitakshara prevails, is still to be followed under the Mayukha;
Bhagwan v. Waruhai (1908) 32 Bom., 300, 307 — a doubtful position.

(r) Bhasirthibai v. Bay a (1881) 5 Bom., 264; Saguna v. Sadashiv
(1902) 26 Bom., 710.

is) (1933) 57 Bom., 377, 379.

682

BOMBAY LAW.

[chap. XII,

Joint

inheritance
under the
Mayukha
obsolete.

courts. And any special family or local custom of inheritance
is one which must be in derogation of the law of the school
governing the parties. Neither the Maharashtra nor the
Mayukha school of law can itself be regarded as a special
family or local custom. The statute merely modifies the
Hindu law of the commentaries and the law as laid down in
the decisions of the courts (/). Accordingly the Act cannot
be read as affecting the Mitakshara law of those provinces only
where the son’s daughter, daughter’s daughter, sister and
sister’s son were not before the Act recognised as heirs by
decisions of courts.

Just as the Act confers rights where none were recognised
before, it must be construed to alter the order in the Mitakshara
school in all the provinces as well where it might
be disadvantageous to the heirs mentioned as where it would
be advantageous to them. There is no difficulty whatever
in bringing them after the paternal grandfather according to
the Mitakshara law in Bombay or even where the Mayukha
is supreme. After the paternal grandfather, the son’s
daughter, daughter’s daughter, sister and sister’s son will
come in as a compact series in the absence of any special
family or local custom.

§ 555. The peculiar Mayukha view that (1) the paternal
grandfather and the half-brother, and (2) the paternal great-
grandfather, the father’s brother and the sons of the half-
brothers take as coheirs (w), has neither been observed in
practice nor has it been recognised by the courts (v).

§ 556. Between the paternal grandmother and the
paternal grandfather, in addition to the sister, the fourth to
the sixth descendants of the deceased owner, the widows of
all his six lineal descendants and the third to the sixth des-

(<) A custom must be one which modifies the law and must have
force independently of it; and decisions of courts do not constitute
a custom, Venkatasurya v. Court of Wards (1899) 26 I.A , 83, 22
Mad., 383, 396.

(u) V. May., IV, viii, 20.

iv) Lullahhai v. Mankuvarbai (1878) 2 Bom., 388, 420; Sakharam
V. Sitahai (1879) 3 Bom., 353, 363; Kesserbai v. Valab (1880) 4 Bom.,
188, 208; Rachava v. Kalingappa (1892) 16 Bom., 716, 720. “It is
to be observed that the rule for equal distribution of the property
amongst remote relations of the propositus (Vyav. Mayukha, Ch. IV,
§ viii, pi. 20) , standing at an equal distance from him, appears to
have been wholly disregarded in practice. No instance of its appli-
cation is to be found amongst the cases collected by Messrs. West and
Buhler, nor has any claim by coheirs, as far as our experience goes,
ever been based upon it. Nilakantha’s speculative suggestion in
placitum 20 has not then, by its accordance with, or adoption into
the customary law, become a binding rule**, per West, J., in (1878)

2 Bom., 388, 447 supra.

PARA. 556 .]

BOMBAY LAW.

cendants of the brother, the step-mother and also the widows
of the brother and his five descendants have, on the older view,
been placed as heirs by Messrs. West and Buhlerfw;). In
Rachava v. Kalingappa, Telang, J., considered that the inherit-
ance is to go first in the line of the paternal grandfather, then in
default of anyone in that line, of the paternal great-grandfather,
then of the paternal great-great-grandfather and so forth (rr).
Apparently the gotraja limit was assumed in that case to be
six degrees of descent commencing with the paternal grand-
father. In Kashibai v. Moreshwar(y) the limits were expressly
so stated on the authority of West and Buhler (z) and of
Bhyah Ram Singh v. Bhyah Ugur Singh (a) . In the case be-
fore the Privy Council, there was no question of preference as
there was no competing claim to the succession. The claimants
in that case were in equal degree removed from the deceased,
being his great-great-great-grandsons. They were certainly
heirs in the absence of nearer sapindas, and the question
whether the succession to the estate of a man stops and
turns back at the third male in descent was not considered
in that case, Mr. Harrington’s view would be consistent
with the Mitakshara only if the sixth descendant of a deceased
owner could inherit before his brother and his five des-
cendants. But there is no place in the compact series of
heirs for the three descendants of the great-grandson. In the
second place, Manu’s rule of propinquity on which Vijna-
nesvaia insists, is preceded by the rule of three degrees as
marking off the near sapindas In the third place, the
indications in the Mayukha are, if anything, opposed to the
view that each line should be continued to the sixth descend-
ant, for Nilakantha takes the propinquity of the paternal
grandfather and the half-brother to be equal and he makes
a more remarkable statement that the paternal great-grand-
father, the father’s brother and the sons of the half-brother
are of equal propinquity (6). There may be no difficulty
with reference to the compact series of heirs in reading
‘brother’s son’ as including his fifth descendant. But as was
rightly observed in Kalian Rai v. Ram Chandar, “Messrs.
West and Buhler seem rather to beg the question, where they
say that the paternal grandmother must inherit in preference
to the brother’s grandsons. If the words ‘sons’ and ‘brother’s

(w) 4th edn., pp. 107, 115-117,
ix) (1892) 16 Bom., 716, 719.

(y) (1911) 35 Bom., 389, 392.

(z) 3rd edn., 114-123.

(a) (1872) 13 M.I.A., 373, 394.

(b) V. May., IV, viii, 20.

684

SUCCESSION UNDER MITAKSHARA LAW. [CHAP. XII,

sons* in the verses last referred to are read as including
grandsons, the latter will exclude the paternal grand-
mother” (c). The further observations in that case however
appear to be due to a misconception. The court observed
that “according to Mr. Harrington^s view, a great-great-
grandson of the deceased would take immediately after the
great-grandson, and even if that view is not correct, the
remote descendants of the proprietor might well be regarded
as less nearly akin than the grandnephews” (d). Mr.
Harrington’s view is clearly wrong; for, it is settled that in
default of the great-grandson, it is not his son but the widow
of the owner that inherits. The Viramitrodaya is explicit:
“Hence it is established that it is only in default of male
issue down to the great-grandson that the wife takes the
estate of the husband who was separated and not reunited” (c).
On this view, the compact series (baddhakrama) on which
Vijnanesvara insisted, beginning with the widow and ending
with the brother’s descendant, leaves no room for the great-
grandson’s three descendants. The other observation that
remote descendants of the proprietor might be less nearly
akin than the grandnephews, does not answer the objection
to a scheme which prefers the fifth descendant of the brother
to the fifth descendant of the deceased himself. It is therefore
clear that the interpretation of the Mitakshara scheme of
succession by Dr. Saivadhikari and Dr. Jolly which is based
upon the opinion of Apararka and which has been approved
by the Judicial Committee in Buddha SingKs case (/) is
correct. (§§542, 545).

§ 557. Notwithstanding the decision of the Privy
Council, a Full Bench of the Bombay High Court adheres
to its earlier view that a brother’s son does not include a
brother’s grandson in the compact series of heirs and that
his place in Bombay is as a gotraja sapinda after the paternal
grandmother and the sister (g). But if the brother’s son
includes brother’s grandson, he will be included in the com-
pact series of heirs. The words in the Mitakshara in II,
V, 2 are *bhratrusutah* (brother’s sons) and Uatsutanantaram*
(after the brother’s son) which have to be under-
stood in a generic sense in accordance with Buddha SingKs

(c) (1902) 24 All., 128, 134 approved in Buddha Singh v. Laltu
Singh (1915) 42 LA., 208, 37 All., 604.

id) Ib.. 135.

(e) Viramit., Ill, i, 11; Setlur’s ed., p. 394.

if) (1915) 42 I.A., 208, 37 AIL, 604.

ig) Appaji V. Mohanlal (1932) 54 Bom., 564^ 604, ,611 F.B.

PAtiAs. 557-558. J

POMbAV LAW.

685

case (g^). And II, v, 4, which provides for heirs ‘on
failure of the father’s descendants ( pUrusantanay makes it con-
clusive that the descendants of the brother and not simply his
son must come in before the grandmother and the grandfather.

The Mayukha in adopting the terminology of Vijnanesvara
must be held to take the same view as regards the compact
series of heirs (/i). As under the Mayukha, the sister comes
immediately after the paternal grandmother and immediately
before the paternal grandfather, there is no place for the
brother’s grandson between the sister and the paternal grand-
father as suggested by the Bombay High Court. It would
seem therefore that the place of the brother’s grandson is
immediately after the brother’s son.

On the view taken by the Full Bench, aftei the paternal
giandmothei, (and if Shidramappa v Neelawa is right, the
sister) the fourth .to the sixth descendants of the owner, the
son’s widow and ‘the widows of lineal male descendants will
come in before the brother’s grandson; after him, the fourth
to the sixth descendants in the father’s line and the widows
of gotraja sapindas in that line viz., the stepmother and the
widows of the brother and of his five descendants; then the
paternal grandfather and the new statutory heirs, viz., son’s
daughter, daughter’s daughter (and on the view stated in
§ 554, the sister) and the sister’s son will come in. There-
after come the paternal uncle and his five descendants
according to Messrs. West and Buhler and the widows of
gotraja sapindas in the line of the paternal grandfather com-
mencing with the father’s stepmother. Then the great-grand-
mother, the great-grandfather, their descendants with the
widows of gotraja sapindas in each line after the male des-
cendants in that line, and so on, up to the last sapindas and
samanodakas. On the view here suggested, the order will
be the same as mentioned m § 545 with the addition of the
stepmother, father’s stepmother, etc., and the widows of
gotraja sapindas of three descendants in each line as succes-
sion ascends or descends.

The order of succession among bandhus has belen already
detailed (£).

§ 558. The subject of reunion has been already dis- Reunion,
cussed (/). While the effect of reunion is generally to restore

(g^) Mr. Colebrooke's translation of it as ‘nephew’, instead of
literally as the ‘brother’s son’ is misleading.

(h) V. May, IV, viii, 18. There is nothing so decisive in this a*
to prevent the term *bhratruputrd' being read in a generic sense by
construing the Mitakshara and the Mayukha together.

(i) ISee ante § 547-552.

(y) See ante |§ 467-470.

6&6

ULtlMAtfi llElkS.

tcrtAP. Xlt,

Ultimate

heirs.

the joint family status (k) with its incident of survivorship,
an exception to the strict rule of survivorship is recognised
by allowing a divided full brother to take along with the
undivided half-brother, the share of the reunited coparcener,
in the absence of his male issue (/).

In default of reunited brothers of the half-blood, or of
any brothers of the whole blood, the succession passes in
order to the father, or paternal uncle, if reunited; to the
half-brother not reunited, to the father not reunited; in
default of any of them, then successively to the mother, the
widow and the sister (m). If none of these exist, then to
the nearest sapindas or samanodakas as in the case of
oi dinary separate property. Of this line of succession, the
author of the Viramitrodaya says very truly: “In this order
there is no principle; hence this order rests entirely upon the
authority of the texts of law.” (n).

§ 559. In default of bandhus of the deceased, the
preceptor, or on failure of him, the pupil, or the fellow-
student succeeds to his estate (o) . If there be no
fellow-student, a learned and venerable priest (siotriya)
should take the property of a Brahmana, or in default of
such a one, any Brahmana (p) , In case of traders who die
in a foreign country, leaving no heirs of their own family,

(A) Narasimhacharlu v. Venkata (1910) 33 Mad., 165; Nana v.
Prabhu (1923) 75 I.C., 508, A.LR. 1924 Pat., 647; Babu v. Gokuldoss
(1928) 55 M.L.J., 132, 145-146.

(/) Narasimhacharlu v. Venkata (1910) 33 Mad., 165 and Babu v.
Gokuldoss (1928) 55 M.L.J , 132, 146 explaining Ramasami v.

Venkatesam (1893) 16 Mad., 440; Kristraya v. Venkataramaiah (1903)
19 M.L.J., 723.

(m) Smritichandrika, Xll, 23-39; Yiramit., IV, 9-11; Setlur's ed.,
435. See Jha H.L.S., II, p. 407.

in) The Viramitrodaya says: “The order of the heirs, which is
laid down in the text, The wife and the daughters also, etc.,’ — and
vvhich IS founded upon a principle and is relative to separate property,
— 18 opposed by the order laid down by texts of law with reference
to the present case.” (IV, 9, Setlur’s ed., p. 435). On failure of
the wife, the sister gets the share of a sonless reunited person,
(Yiramlt., IV, 10, SetluVs ed., 435). According to the Mayiikha, in
default of the wife, the sister, the daughter or the daughter and the
sister, and in default of both, the nearest sapinda succeeds. V. May.,
rV, IX, 25; Mandhk, page 90.

(o) Mit., II, vii, 1-2; Smritichandrika, XI, 6, 1-4; V. May., IV,
8, 24; Viramit., Ill, 7, 6-7.

(p) Mit., II, vii, 3-4; Apas., II, 6, 14, 23; Gaut., XXVIII, 41;
Smntichandrika, XI, 6, 5-6; V. May., IV, 8, 25, 26 citing Katyayana
and Narada; Viramit., Ill, 7, 8-9; Sarasvati VUasa, paras. 519*613;
V. Ratnakara, XXXIV, 17, 19, 20-23; V. Chintamani makes a distinc-
tion and does not refer to the preceptoi, pupil, or a fellow student.
According to it, the wealth goes to the king excepting however the
property of a Brahmin. (V. Chintamani, 298-299),

PAkAs. 559-560.] ksctttAT to Ttlk ckoWN.

687

the fellow-trader is authorised (^). Finally, in default of
all these, the king takes by escheat, except the property of a King.
Brahmin, which, it is said, can never fall to the Crown (r).

In Sarnbasivani Pillai v. Secretary of State for India,
the Madras High Court held that the text of Yajnavalkya
(II, 136) and the Mitakshara (II, vii) relating to the succes-
sion of the preceptor, disciple and fellow -student apply to all
classes and are neither obsolete nor unreasonable but on
the contrary, the rules were consonant with current Hindu
ideas. It was held that the disciple of a Sudra ascetic, who
dies without leaving any blood-relation, succeeded to his estate
intercepting its escheat to the Crown (5). In determining
who is a preceptor, pupil, or a fellow student in the above
text, the Court will only consider the imparting of purely
religious instruction and training which of course are not con-
fined to Brahmins (^). It will be obseived that the text of
Yajnavalkya (II, 137) and the Mitakshara (II, viii) which
lay down a special rule of succession to a hermit or ascetic
were not applied to the case as it has been held that they
do not govern the case of a Sudra ascetic (a).

§ 560. The claims of srotriyas or any Brahmin to the Escheat,
estate of a Brahmin are of course too indefinite to be
enforceable. The direction that the King can never take
the estate of a Brahmin has also been overthrown in the only
case in which the exemption was set up (r) . There the Crown
claimed by escheat as against the alienee of a Brahman
widow, whose husband had left no heirs. It was held that
the claim must prevail, notwithstanding the rule relied on;
either on the ground, that the rule itself assumed that the

{q) See a passage in the Mitakshara, not translated by Mr. Cole-
brooke cited in Gridhan v. Bengal Govt. (1868) 12 M.I.A., 448, 457,

465.

(r) Mit., II, vii, 5-6. “But the king, and not a priest, may take
the estate of a Kshatriya or other person of an inferior caste, on failure
of heirs down to the fellow-student. So Manu ordains: But the
wealth of the other classes, on failure of all heirs, the king may take.’*

(Manu, IX, 189).

(s) (1921) 44 Mad., 704. The court referred to the two texts
ds Yajn., II, 137-138, following the footnotes in Stokes H.L.B. They
are II, 136 137 in Mandlik’s Yajnavalkya Smriti as well as in the
Sanskrit editions of Setlur and Moghe.

(0 Giyana Sambandha v. Kandasami (1887) 10 Mad., 375.

Of course, very strict proof of spiritual relationship will be re-
quired, (1921) 44 Mad., 704 supra, see as to spiritual instruction,
Kamchandra Martand v. Vinayak (1915) 42 LA, 290, 42 Cal., 384,

421.

(«) Dharmxipurani Bandarasannadhi v. Virapandwm (1899) 22

Mad , 302.

iv) Collector of Masidipatam v. Cavafy Venkata (1860) 8 M.I.A.,

500.

688

^t^GClAL SUCCESSIONS.

tcHAP. Xti,

Subject to
valid trusts
or charges.

Escheat is
only to
Crown.

Properly of
ascetic.

King must take the estate for a time, in order to pass it on to
a Brahman; or on the ground, that where the last owner died
without heirs, there ceased to be any personal law governing
the case of Brahmans, which could settle the further devolu*
lion of the property. In the former case, the title of the
Crown to hold was complete, subject only to the question
whether the Crown held absolutely, or in trust. In the latter
case, in the absence of any personal law, the general prero-
gative of the Crown as to heirless property must prevail.

When it has taken, its title prevails against all un-
authorised alienations by the last owner, but subject to any
valid trusts or charges affecting the estate for the maintenance
of persons entitled thereto (w) and debts incurred or mort-
gages made by the widow for legal necessity {x). When the
Crown claims by escheat, it must make out affirmatively
that there are no heirs (y).

The principle of escheat does not apply in favour of
proprietors of estates who have carved out a subordinate, but
absolute and alienable interest, from their own estate. On
failure of heirs of the subordinate holder, the estate will pass
to the Crown, and will not revert to the proprietor (z) .

§ 561. Special rules are also propounded for succes-
sion to the property of a hermit, of an ascetic, and of a
professed student (a). Yajnavalkya states a special rule
of succession in regard to the wealth of ascetics and the like.
“The heirs who take the wealth of a Vanaprastha (a hermit) ,
of a Yati (an ascetic) and a Brahmachdrin (a student), are
in their order, the preceptor, the virtuous pupil, and one who
IS a supposed brother and belonging to the same order” (6).

{w) Mt, Golab Kunwar v. The Collector of Benares (1847) 4
M.I.A., 246; Collector of Masulipatam v, Cavaly Venkata (I860) 8
M.LA., 529, 555.

(t) Cavaly Venkata v. Collector of Masulipatam (1867) 11 M.r.A.,
619.

iy) Gridhari v. Govt, of Bengal (1868) 12 M.I.A., 448; Ganpat
Rama v. Secy, of State (1921) 45 Bom., 1106; Narayan Pundlik v.
Laxman Daji (1927) 51 Bom., 784, 794; Satis Chandra Sircar v.
Haridas Mitra A.I.R. 1934 Cal., 399, 38 C.W.N., 98.

( 2 ) Sonet V. Mirza (1875) 3 T,A., 92, 1 Cal,, 391.

(а) Yajnavalkya, 11, 137; Mitakshaia, II, 8; Daya Bhaga, XI, 6,
§§35, 36; 2 Stra.H.L., 248; W & B, 468, Dig., II, 577, Smriti Chan-
drika, XI, 7; Viramit., Ill, vui, 1-2, Setlur’s II, 425-6; V. May., Ill, viii,
28; Vivadaratnakara, XXXIV, 33; Vivadachintamani, 299-300; V. Darp,
312; see Khuggender v. Sharupgir (1879) 4 Cal., 543; Giyana Sam-
handha v. Kandasami (1887) 10 Mad., 375, 384; Collector of Dacca
V. Jagat Chunder (1901) 28 Cal., 608; Ramdas Gopaldas v. Baldevdasji
Kaushalyadasji (1915) 39 Bom., 168; Ganeshgeer v. Parvatibai (1933)
142 I.C., 70.

(б) Yajn., II, 137; Mandlik, 222.

PARA. 561 .]

SPECIAL SUCCESSIONS.

689

The Mitakshara explains thus: A spiritual brother belong-
ing to the same hermitage (dharmabhratrekatirthi) takes the
goods of the hermit (vanaprastha) , A virtuous pupil
(sacchishya) takes the property of a yati (an ascetic). The
preceptor (acharya) is heir to the brahmachari (professed
student) (c). But on failure of these, any one belonging
to the same order or hermitage takes the property; even
though sons and other natural heirs exist (d).

The property that is referred to is explained in the
Mitakshara and in the Viramitrodaya as consisting of clothes,
books, and other requisite articles (e) . Practically, however,
such cases seldom arise. When a hermit oi ascetic holds any
appreciable extent of property, he generally holds it as the
head of some mutt or as the manager of some religious or
charitable endowment, and succession to such property is
regulated by the special custom of the foundation. No one
can come under the heads of hermit, ascetic, or professed
student for the purpose of introducing a new rule of suc-
cession, unless he has absolutely retired from all earthly
interests, and, in fact, become dead to the world. In such
a case all property then vested in him passes to his legal
heirs, who succeed to it at once. If his retirement is of a
less complete character, the mere fact that he has assumed
a religious title, and has even entered a monastery, will not
divest him of his property, or prevent his secular heirs from
succeeding to any secular property which may have remained
in his possession ( /) . The Smriti texts applicable to the
order of yati or sanyasi do not apply to Sudra ascetics. The
devolution of their property is therefore governed by the
ordinary laws of inheritance, in the absence of any special
usage ig ) .

(c) Mit., II, viii, 3-5.

(d) Mit , II, viii, 6; see Parma Nand v. Nihal Chand 65 I A , 252,
A.I.R. 1938 P.C., 195. (Nor can he succeed to the property held by
his natural relatives)*

(e) Mit., II, viii, 8, Viramit., Ill, viii, 2, (Setlur, II, 426) ,
Sarasvati Vilasa, para. 626.

(/) 2 W. MacN., 101; Mudoobun v. Huri S.D. of 1852, 1089; Amelia

V. Radahabinode S.D. of 1856, 596 ; Khoodeeram v. Rookhmee 15

W. R., 172; Jagannath v. Bidyanand 1 B.L.R. (A.C.J.), 114, 10 W.R.,
197, Dukharam v. Luchmun (1879) 4 Cal., 954.

(g) Dharmapuram Pandara Sannadi v. Virapandiani (1899) 22

Mad, 302; Harish Chandra Roy v. Atir Mahmud (1913) 40 Cal., 545;
Somasundaram Chettiar v. Vaithilinga Mudaliar (1917) 40 Mad., 846;
Narasinhadas v. Khanderao A.I.R 1922 Bom , 295 ; Sobhaddi Lai v.
Gobind Singh (1924) 46 All., 616 As to the rites necessary to become
an orthodox sanyasi, see Kondal Row v. Iswara Sanyasi (1913) 33
M.L.J., 63; Baldeo Prasad v. Arya Prati Nidhi Sabha (1930) 52 All.,
789; Krishnaji v. Hanmaraddi (1934) 58 Bom., 536.

46

690

SPECIAL SUCCESSIONS.

[chap. XII,

Succession to
ihe property
of parties
married under
Act III of
1872.

Illegitimate

offspring.

§ 562. Succession to the property of any person pro-
fessing the Hindu, Buddhist, Sikh or Jaina religion, who
marries undei the Special Marriage Act (III of 1872), and
to the property of the issue of such marriage, is governed
by the piovisions in sections 32 to 48 of the Indian Succes-
sion Act (XXXIX of 1925) (A). Curiously enough, succes-
sion to the properly of a Hindu who marries under the Act
on a declaration that he does not profess the Hindu religion
is governed by Hindu law (i ) .

§ 563. The rules of inheritance relating to sapindas,
samanodakas and bandhu<^ are based upon marriage and a
legitimate descent. The illegitimate son of a Sudra is the
only exception and his rights are also restricted. The ques-
tion how far the rules of inheiitance can be applied in the
case of illegitimate descendants has been the subject of
decisions. In Mayna Bai v. Uttar am, two illegitimate sons
of a woman were held to have heritable blood as between
them. Wheie two illegitimate brothers lake jointly, the
estate passes by survivorship in the ordinal y way (/). On
the death of one, his legitimate male issue will be in co-
parcenary with the male issue of the other. An illegitimate
son of a Sudra does not inherit collaterally to a legitimate
son by the same father (^). Nor can the son of a legitimate
son of a Sudra inherit to his illegitimate son (/). The reason
is there can be no «sapinda relationship between the legitimate
and the illegitimate collaterals. The legitimate sons of
two sons of d Hindu dancing woman or of a
prostitute have heritable blood between them and
are entitled to succeed to each other either on grounds of
equity and good conscience or on the analogy of Hindu
law im). The sapinda relationship as defined by the
Mitakshara has been held to apply even where the descent
can be traced through the mother only, and not through the
father (n). In Viswanatha Mudali v. Doraiswami Mudali,

(h) The Special Marriage Act, §24.

ii) In the goods of Jnanendranath Ray (1922) 49 Cal., 1069;
Vidyagavn v. Narandas A.I.R. 1928 Bom., 74, Thuhrii Bai v. Attavar
(1935) 58 Mad.. 1004.

(;) (1861) 8 M.I.A, 400, (1864 ) 2 M H.C R., 196. See ante
§§ 527-529.

(A) Shome Shankar v. Rajesnr (1899) 21 All., 99.

(/) Viswanatha Mudali v. Doraiswami (1925) 48 Mad., 944, 953;
Zipru V. Bomtya (1922) 46 Bom., 424, Dharma v. Sakharam (1919)
44 Bom., 185.

(m) (1925) 48 Mad., 944 supra,

in) Dattatraya Tatya v, Matha Bala (1934) 58 Bom., 119; Narayan
Pundhk V. Laxtnan Daji (1927) 51 Bom., 784, 793; (1925) 48 Mad.,
944, 954, 960 supra.

PARA. 563.] SUCCESSION UNDER MITAKSHARA LAW.

691

the grandsons of one of two illegitimate brothers weie held
entitled as reversioners to the estate of the great-grandson
of the other illegitimate brother (o) But in Ratna Mudaliar
V. Krishna Mudaliar, the son of one of two illegitimate
brothers was held not entitled to claim, as the next pre-
sumptive reversioner, the estate of the other illegitimate
brother’s great-grandson whose paternal aunt’s son was
alive (p). The ground of decision was that he could not be
regarded as a sagotra sapinda of the last male owner so as to
be preferred to an atmahandhu. But, when once it is admitted
that two illegitimate brothers have heritable blood as between
them and are entitled to inherit as brothers, their legitimate
descendants will be governed by the ordinal y rules of suc-
cession either on the grounds of analogy or on principles of
justice and equity. The two illegitimate brothers cannot be
said to be cognates of one anothei. They are therefore to be
legarded as if. they are agnate sapmdas for the purpose of
Hindu law as between themselves, their legitimate male des-
cendants being, of course, their sagotra sapmdas.

It has been held that prostitution does not sever the tie
of kinship by blood and a legitimate son of a Sudra woman
succeeds to hei property in preference to an illegitimate
daughter born in prostitution (q) Where an illegitimate son
dies leaving no issue, widow or mother, his putative father
succeeds as his heir (r). A fortiori, the mother is entitled
to inherit the estate of hei illegitimate son (5). It has been
held that an illegitimate daughter succeeds to her mother’s
property but not to hei father’s property (^) in the absence
of nearer heirs (u) and that where a woman left
an illegitimate son and an illegitimate daughter, it
has been held that on the death of the illegitimate
son, without leaving nearer heiis, his illegitimate
sister was entitled to inherit {v) . But the illegitimate
daughters of a legitimate daughter of a woman were held not
entitled to succeed to their grandmother’s estate in preference
to her sister’s grandson (ic).

(0) (1928) 48 Mad., 944 supra.

(p) (1937) 1 MLJ., 390.

ig) Meenakshi v Muniandi (1915) 38 Mad, 1144

(r) Subranianya v. Rathnavelu (1918) 41 Mad., 44 (F.B.).

(1) Mayna Bovee v. Uttaram (1864) 2 M.H.C , 196, Jagarnath Gir
V. Sher Bahadur Singh (1935) 57 All., 85.

it) Bhikya v. Bahu (1908) 32 Bom, 562, Balraj Singh v. Jai Karan
Singh AIR. 1931 All, 407

iu) Dundappa v Bhiniava (1921) 45 Bom, 557, Ariinagin v.
Ranganaiki (1898) 21 Mad, 40.

iv) Dattatraya v Mathabala (1931) .58 Bom, 119 following

Narayan v. Laxman (1927) 51 Bom., 784.

iw) Meenakshi v. Ramaswami J osier (1937) 1 M.L.J., 28.

692

SUCCESSION UNDER MITAKSHARA tAW. [cHAP. XU.

Succession to
an outcaste or
a degraded
person.

§ 564. Hindu law itself does not prescribe any special
rule of succession to the property of an outcaste or a de-
graded person. In the absence of any special usage, the
devolution of property of outcastes or degraded persons, who
were originally within the pale of Hinduism and who have
not become converts to any other established religion are
governed by the rules of Hindu law either by their own
force or on principles of justice, equity and good conscience
(§52) {x).

(x) Subbaraya v. Ramasami (1900) 23 Mad., 171, 177; Nalinaksha
V. Rajani (1931) 58 Cal., 1392, Sarna Moyee v. Secretary of State
(1897) 25 Cal., 254, Sundari Dossee v. Nemye Charan (1907) 6 Cal.
L.J., 372; Narairi Das v. Tirlok Tiwan (1%7) 29 All., 4; Ishwari
Prasad v. Rai Han (1927) 6 Pat., 506, 540; Neelawa v. Gurshiddappa
A.I.R. 1937 Bom , 169.

CHAPTER XIII.

SUCCESSION UNDER DAYABHAGA LAW.

§ 565. The order of succession according to the Xwo

Davabhaga school is marked by two outstanding features, prominent
Religious efficacy, in other words, the capacity to confer

spiritual benefit on the deceased owner, is the determining
principle regulating the order of succession (a) . According
lo that school, the term ‘sapinda’ refers to those who are
connected by funeral oblations and not those connected by
particles of one body. The other great feature of the
Dayabhaga system is that it lays down only one mode of
succession. Theie is no right by birth nor survivorship Only one
though a joint lamilv and coparcenary propeity are recog- mode of

nised. The rples of inheritance are therefore the same

whethei the faniil\ is divided oi undivided, and whethei the
pioperty is joint oi separate.

Whethei the gieat jurist who built his system on Principle of
the foundation of spiiitual benefit was only justifying on spiritual
a logical ground, usages which were already in existence, or
to a large extent remoulded them, it is not easy to determine.

But this much is clear that in his hands the principle of
spiritual benefit was utilised to free the father from the
legal fetters of the joint family system and to frame an
ordei of succession in accordance with more equitable
principles (6) While Vijnanesvara rests his order of suc-
cession on Yajnavalkya (II, 135-6), Jimutavahana rests his
scheme piimarily on Manu’s texts (b^). Probably the
divergence between their views was, in part, due to this
different appioach.

§ 566. While Jimutavahana undoubtedly made the Not the sole
doctrine of religious efficacy very generally the determining ground,
factor in the law of succession, the proposition that, in the

(а) Dayabhaga, XI, i, 32*36. See ante §§ 486-488, 490.

(б) Dr. Jolly says “The elements of the Dayabhaga doctrine are,
no doubt, very old, and may have been derived by Jimutavahana in
this case as in other cases from Apararka’s or some other old com-
mentary of the Yajnavalkya or Manu Smntis”. T.L.L., 173, 174,
But Apararka in the twelfth century wastoo near Jimiitavahana^s date
to have inspiied him See ante §§ 32, 261, 262.

(6U Manu., IX, 106, 187, D. Bh., XI, i, 32, 33, 40. Incidentally
the fact that Jimutavahana deduces his fundamental rule of spiritual
benefit from the reason mentioned by Manu (IX, 106) for the suc-
cession of son, shows the weakness of the position of some modern
writers as to the Mimamsa rule that the mention of a reason does not
modify the rule to any extent.

694

SUCCESSION UNDER DAYABHAGA LAW. [CHAP. XIII,

Dayabhaga School, that doctrine is universally and without
exception the sole test cannot be said to be altogether free
from doubt. The observation of Mitter, J., in Guru Gobind v.
Anand Lai (c) that the principle of spiritual benefit is the
sole ground of preference in the Dayabhaga system appears
to go too far. In Tulsee Dass v. Luckymoney (d),
Akshay Chandra v. Hari Das (e), and Nalinaksha v.
Rajani (/), it was observed that that doctrine is not
always the guiding principle of inheritance under
the Bengal School of law and that it cannot be con-
sistently applied in all cases. Taking the order of succession
as given in the Daya Krama Sangraha, the preference of
the reunited brother’s son to the separated brother’s son, and
the position of the paternal grandmother and great-grand-
mothei are not rested on the conferiing of spiritual
benefit (g). The prefeience of the paternal uncle’s
son’s son to the paternal aunt’s son is admitted by the Dava
Krama Sangraha as due to relationship in the degree of
sapinda though the latter confers greater spiritual benefit than
the former (/i). The succession of samanodakas and samana-
pravaras (members of the same gotra) does not appear to
rest on the doctrine of spiritual benefit (i). As to the
former, it is inappreciable; as to the latter, it is nil. These or
other instances where the doctrine of spiritual benefit either
fails or is not the sole test are given in the judgment of
Mitra, J., in Akshay Chandra v. Haridas (j). Citing the text
of Brihaspati (A), Raghunandana in his Dayatattva, says that
a successor to the inheritance is to be determined with refei-
ence to two considerations, namely, his relation as regards the

(c) (1870) S Beng. L.R., 15, 34. F.B., Amnta v. Lakhinarayan
(1869) 2 B.L.R, F.B , 28, Gobind v. Mohesh 15 B L.R., 35,
Digumber Motilall (1883) 9 Cal, 563, F.B , Kedar Nath v llan Dt\
(1915) 43 Cal.. 1.

(d) (1900) 4 C.W.N., 743.

(e) (1908) 35 Cal, 721, 726.

(/) (1931) 58 Cal, 1392; but see Dinanath v. Chandi (1889) 16
C L.J., 14, Sambhiichandra v. Kartik Chandra (1927) 54 Cal., 171;
Radharaman v Gopal (1920) 31 C L.J., 81, 24 C W N , 316; Nepal Das
V. Probhas (1927) 30 C.W.N., 357; (1915) 43 Cal., 1 supra.

ig) D.K.S., I, viii, 3, I, X, 4.

ih) D.K.S., I, X, 8. See also as to brother’s grandson D.K.S., V.

ix, 1. The degree of sapinda and the presenting of funeral oblation*-
are both mentioned.

(i) See D.K.S., I, x, 26, 31. See § 488 and note (v) to it.

(;) (1908) 35 Cal., 721 supra,
ik) Brih., XXV, 62.

PARAS. 566-567.] DOCTRINE OF SPIRITUAL BENEFIT.

695

offering of oblations and his proximity of birth (A;^) ; and his
view on the question which is quite positive, is entitled to
much weight. Though the preponderance of authority is
decidedly in favour of the stricter view, it cannot be taken
as established that the three authorities of the Bengal School
intended that cases not expressly detei mined by them on the
basis of spiritual benefit should be determined solely on that
ground without giving due weight to the principle of pro-
pinquity which was also, to some extent, lecognised by them.

§ 567. The pai vanasraddha oi tnancestral rite which Parvana-

is the foundation of the doctrine of spiritual benefit, “con-

*■ ^ its liasi*^.

sists in the presentation of a certain number of oblations,
namely, one to each of the first three ancestois in the paternal
and mateinal lines lespcctively , or, in other words, to
the lather, the grandfather and the great-grandfather in the
one line, and the maternal grandfather, the maternal great-
grandfathoi. and the maternal great-great-grandfather in the
other” This would give one explanation of the texts

which state that sapindaship does not extend on the side of
the fathei bevond the seventh degree, and on the mother’s
side beyond the fifth(m). In the Dayabhaga school, the term
sapinda is applied to the offeror and his three immediate Sapmda.
ancestors, as he and they are connected by the same
cake, or pinda ( n ) . Sakulya is he who offers the fragments Sakulya.
of the pirida or cake to the three paternal ancestois next
above those who leceive the entire pinda (o) . A deceased owner

(A^) Raghiinanddna, XI, 63, Setlur, II, 512. But D.K.S., I, x, 25
holds differently

(/) Per Mr Justice Milter, Guru v Anand (1870) 5 BLR, 15, 40,
13 WR (FB), 49, Dd>d Bhaga, XI, 6, §§13, 19, Manu, IX, §132;
Dig, II, 609, 624, (verse 497). It will be observed that the paternal
ancestors aie counted inclusive of the father, the maternal exclusive
of the mother, Sarvadhikari, 2nd ed , 58-78. See too Ddttaka Mimamsa,

IV, § 72, note by Sutherland. The adopted son cannot perform a
parvana or double rite but only the ekoddishta, a rite dedicated to a
single ancestor, ibid when* a line is broken by adoption, the tn-
ancestral rite and the religious efficacy founded upon it cannot even
in the Bengal School be a urdversal proposition

(w) Brihat Manu, cited Dattaka Mimamsa, VI, §9, Gautama, ib ,
§11, Yajnavalkya, i, §53 See ante §110.

(n) D. Bh , XI, 1, 38-40, following Manu., IX, 187 and Baudh., I,

V, 11, 9-10. Raghunandana, aftei explaining Baudhayana's text, says
that “this relationship of Sapinda (extending no further than the
fourth degree) as well as that of Sakulyas is propounded relatively to
inheiitance But relatively to mourning, marriage, and the like, those
too that partake of the remnants of oblations are denominated
Sapmdas,” XT, 8, Setlur, II, 505, see ante §475

(o) Manu, III, §§ 122-125, 215, 216; V, §60, IX, §§ 186, 187;
Baudhayana, I, 5, §1, Daya Bhaga, XI, 1, §§37-42, Viramit, p. 154,
§11, Setlur, II, 391, Colebrooke, Essays (edn. 1858), 90, 101-117.

696

DAYABHAGA DEFINITION OF SAPINDA. [ CHAP. XIII,

Theory of
relationship.

Relationship
to females.

is therefore related in a primary and special degree to persons
in the three grades of descent next below and above himself:
in a secondary, and less special, degree to persons in the
three grades below and above the former three. This result
flows from the mutuality of sapindaship. He who receives
offerings is the sapinda of those who present them to him,
and he who presents offerings is the sapinda of the person
who receives them. Therefore, every man stands as the
centre of seven persons, six of whom are his sapindas, though
not all the sapindas of each other. Further, the deceased
does not merely benefit by oblations which are offered to
himself. He also participates in the benefit of oblations
which though not offered to him are presented to persons to
whom he was himself while alive bound to offer. As Mr.
Justice Mitter said: “If two Hindus are bound during the
respective terms of their natural life to offer funeral oblations
to a common ancestor, or ancestors, either of them would be
entitled after his death to participate in the oblations offered
by the survivor to that ancestor or ancestors; and hence it
IS that the person who offers those oblations, the person to
whom they are offered, and the peison who paiticipates in
them are recognized as sapindas of each other” (p).

§ 568. So also, a man is the sapinda of his mother,
because she confers benefits on him by the birth of other
sons who may offer oblations in which he will participate (qr).
Apparently on the analogy of the mother’s right of succes-
sion, the grandmother and the great-grandmother are re-
cognised as heirs (^^). And so the wife is the sapinda of her
husband; because, in the absence of male issue, she performs
acts spiritually beneficial to her husband from the date of
her widowhood (r). So too, a daughter is a sapinda as she
offers funeral oblations by means of her son ( 5 ). Now, the
widows of a predeceased son and of a predeceased son of a
predeceased son have also become heirs (Ch. XIV).

But no other females are recognised as heirs, not even a
son’s daughter, or a daughter’s daughter or a sister. The

(p) Guru V. Anand (1870) 5 B.L.R., 15, 39, 13 W.R. (F.B.), 49,
citing Daya Bhaga, XI, 1 , § 38. See too the Nirnaya Sindhu, cited Amrita
V. Lakhinarayan (1869) 2 B.L.R. (F.B.), 28, 34, 10 W.R. (F.B.), 76,
81, and per Mitter, J., in 2 B.L.R. (F.B.), 28, 32; Dig., II, 520.

iq) Manu, IX, 45; D. Bh., XI, iv, 2; XI, vi, 3-4; Dig., II, 550, 566,
567; Colebrooke’s Essays, 116.

( 9 I) D. Bh., XI, IV, 4; D.K.S., I, x, 4, 10.

(r) D. Bh., XI, 1 , 43; c/. Vivada Chintamani, 290.

(s) D. Bh., XI, ii, 1, 2 , 15.

PARAS. 568-569.] COGNATES UNDER DAYABHAGA.

697

Hindu Law of Inheritance (Amendment) Act (11 of 1929)
does not apply to Hindus governed by the Dayabhaga law (/) .

§ 569. The sapindas just described are all agnates, that
is, persons connected with each other by an unbroken line
of male descent. Other sapindas are cognates, or connected
by the female line. Jimutavahana gives the following
definition of a bandhu or cognate: “Therefoie a kinsman,
whether sprung from the family of the deceased, though of dif-
ferent male descent, as his own daughter’s son, oi his father’s
daughter’s son, or sprung from a different family, as his
maternal uncle or the like, being allied by a common funeral
cake, on account of their piesenting offerings to three ancestors
in the paternal and the mateinal family of the deceased owner.
IS a sapinda” (u) Now, the mode in which cognates come to
be connected with the agnates by funeial oblations is bv
means of the parvaimsi addha already explained. The sapinda
who offers a cake as bandhu is the fifth in descent fiom the
most distant maternal ancestois to whom he offers it Now,
on the jirinciple ol paiticipation already slated, any bandhu
who offers a cake to his maternal ancestois will be the
sapinda, not only of those ancestors, but of all other persons
whose duty it was to offer cakes to the same ancestors. But
the maternal ancestors of A may be the paternal or maternal
ancestors of B, and in this manner A will be the bandhu,
or bhinnagotra sapinda of B, both being under an obligation
to offer to the same peisons (v)

Hence the table of descent will stand as follows: —

Sapindas Sakulyas Samanodakas

(3 degrees) (4-6 degrees) (beyond 6 degrees)

Gotraja Bandhus

(agnates) (cognates)

Males Females

This will become quite clear by reference to the accompany-
ing diagram. The Owner, who is called in the Daya-

it) Sec. 1 (2).

iu) D. Bh , XI, VI, 19, translated by Mitter, J., in Uma Sunker
V. Kali Komul Mozumdar (1881) 6 Cal., 256, 263.

(v) D. Bh., XI, vj, 19, 12, where Jimutavahana, referring to the
term ‘bandhu’ used by Yajnavalkya, controls it by the text of Manu
and understands it to mean maternal uncle and the like. Apararka,
commenting on Yajn., I, 108, says that bandhavas are the relations of
the mother’s side. See Jolly, L & C, 186.

Agnates.

Cognates.
Bandhu s.

Tables of
descent.

Gotraja

sapindas.

698

SAPINDAS AND SAKULYAS.

[chap. XIII,

Sapindas and
sakulyas.

bhaga the middlemost of seven, is the sapinda of his
own son, grandson, ^nd great-grandson, because they offer

great-great-grandfather
great-grandfather great-great-imcle

grandfather great-uncle

father uncle son

Owner brother •?on grandson

son daughter nephew grandson

I I J .

grandson ‘^on grandnephew

great-grandson great-grandnephew

great-great-grandson

the cake to him, and they are his sapindas, as he receives it
from them. But his great-great-grandson is only his sakulya.
So also he is the sapinda of his own father, grandfather, and
great-grandfather, because he offers the cake to them, and
they are his sapindas, because they receive it from him. But
he and his great-great-grandfather are only sakulyas to each
other (v^). Next as regards collaterals. The owner receives no
cake from his own brother, but he participates in the benefit
of the cakes which the brother offers to his own three direct
ancestors, who are also the three ancestors to whom the
owner is bound to make offerings. So the nephew offers
cake to his own three ancestors, two of whom are the father
and grandfather of the owner; and grandnephew to his three
ancestors, one of whom is the father of the owner. All of
these, therefore, arc the sapindas of the owner, though they
vary in religious efficacy in the ratio of three, two, and one.
But the highest ancestor to whom the great-grandnephew
offers cakes is the brother of the owner. He is therefore
not a sapinda; but he is a sakulya, because he presents divided
offerings to the owner’s three immediate ancestors. Similarlv
the owner’s uncle and great-uncle present cakes to two and
one respectively of the ancestors to whom the owner is bound
to present them. They are therefore his sapindas. But the
great-great-uncle is not a sapinda. since he is himself the
son of a sakulya, and presents cakes to persons all of whom
stand in the relation of sakulya to the owner.

§ 569-A. Samanodakas are the sagotras beyond the degree
of sakulyas (v-), for they must be taken to be comprised in
the term ^sakulyas" used in the texts of Manu and Baudhayana.

(v^) D.K.S., I, X, 22-25; Raghunandana, XI, 72.
(vi) D. Bh.. XI. VI, 23; D.K,S.. I, x, 26.

PARAS. 569-570.]

BANDHUS.

699

Kulluka explains the term ‘sakulyas’ in Manu’s text as
equivalent to samanodakas, that is, the remoter agnates. The
reasoning of the decision of the Privy Council in Atmaram
V. Baji Rao limiting the samanodaka relation to the

fourteenth degree though it was in a Mitakshara case, will
apply in the Dayabhaga school also. And there is an addi-
tional reason for this limitation; for according to Jimuta-
vahana, in default of samanodakas, peisons beaiing the same
family name {gotia) aie heirs (w^)

§ 570. We now come to the bandhus, whose relation- Bandhus.
ship is more complicated. There are two classes of bandhus
referred to by the Bengal wi iters, and who alone can be
brought within the doctrine of religious efficacy ('ll, those
ex paite paterna and ex parte rnatenid The sapinda^^hip of
the first class aiises from the fact that they offer cakes to
their maternal ancestors, who are also the paternal ancestors
of tlie ownei For instance, the sistei’s son, in addition to
the oblations which he piesents to his own fathei. etc., pre-
sents oblations to the thiee ancestors of his own mother, who
are also the three ancestors of the ownei. The aunt’s son
presents them to two, and the grandaunt’s son to one of the
owner’s three ancestors. These persons, therefore, all come
within the definition of bandhus^ as being persons of a different Bandhui
family, connected by funeral oblations, though with different
degrees of religious merit But the great-grandaunt’s son is
not a baiidhu, because the ancestors to whom he presents cakes
are the sakulyas only of the owner. Following out the same
principle, it will be seen that the grandsons by the female
line of the uncle and the granduncle, of the brother and the
nephew, are all bandhus But the son of the grandnephew’s
daughter is not a bandhu. Similarly, in the descending line,
the sons of the owner’s daughter, granddaughter, and great-
granddaughter arc bandhus, as they all present cakes to
himself. But the offerings made by the son of his
great-grandson’s daughter do not reach as far as the owner,
and therefore he is not a bandhu. It will be observed that
the pedigree in Table C always stops with the son of the
female relation. The reason of this will be seen on referring
to the smaller pedigree in that Table. The grandson of
the owner’s daughter will present cakes to his own paternal
ancestors, that is, to the owner’s grandson, and to X and Y,
and also to his own maternal ancestors, that is, to B, C,
and D. But none of these are persons to whom the owner

{w) (1936) 62 I A, 139, AIR, 1935 P C , 57

(m;^) D. Bh., XI, VI, 25, Radhararuan v. Gopal (1920) 31 (1 L f., 81.

ix) Daya Bhaga, XI, 6, §§8-20, D.K.S., I, 10, §§1-20.

700

SUCCESSION UNDER DAYABHAGA LAW. [CHAP. XIII,

is bound to make oblations, and five of them are complete
strangers to him. And so, of course, it is in every other
similar case .

§ 571. The bandhus ex parte materna differ from those
just described in being connected with the owner through his
maternal ancestors instead of his paternal ancestors. The
explanations already given will render it unnecessary to go
through the table in detail. The owner is bound to offer
cakes to his own maternal grandfather, great-grandfather,
and great-great-grandfather, and therefore the other persons
who make similar offerings to them, or to any of them, are
his bandhus. But the sapindas in the maternal line are post-
poned to the sapindas in the paternal line, for while the)
offer oblations to the maternal ancestors which the deceased
was bound to offer, he does not participate in them. But
the sapindas on the paternal side benefit him doubly by
enabling him to participate in the oblations offeied by them
and to dischaige a duty that was incumbent on him of offer-
ing oblations to certain ancestois (a*). All the males shown
on the light of Table C are bandhus ex parte maieina.

Enumeration ^ 572. The letteis D. B., D. K. and M., attached to the
not exhaustive, above pedigree, point out which of the persons

there described are specifically enumerated by the Dayabhaga,
Daya Krama Sangraha and Mitakshara, It will be observed
that very few are set out by Vijnanesvara; that many un-
noticed by him are named by the Dayabhaga, and still more
which are omitted by the Dayabhaga are supplied by the
Daya Krama Sangraha; but that many are wholly passed
over who yet come within the definition of bandhu, and are
even more nearly related than those who are expressly men-
tioned. The daughter’s son is really only a bandhu, though
he is always placed in a distinct category on special grounds
(§§ 478, 488). But the sons of the son’s daughter and grand-
son’s daughtei offer oblations direct to the owner himself,
which no other bandhu does except the daughter’s son. Obvi-
ously, therefore, they should rank before bandhus who offei
only to the owner’s ancestors. But they are all postponed to
the agnatic sapinda descendants of the great-grandfather on
the ground that the expression ‘daughter’s son’ occurring in
the Dayabhaga means only the daughter’s son and not the
son’s daughter’s son or brother’s daughter’s son (a;®). The
son of the nephew’s daughter’s son is not mentioned, though

Radharaman v. Gopal (1920) 31 C.L.J., 81.

(^ 2 ) Braja Lai v. Jiban Krishna (1899) 26 Cal., 285, 291.

(x®) Hari Das v. Bama Churn (1888) 15 Cal., 780, 793-5.

Bandhus
ex parte
materna.

TABLE C
DAYABWAGA

700 A

SAPINDAS INCLUDING BANDHUS KX PARTE PATBRNA. AND

EX PARTE MATBRNA.

Paternal great -great-grandfather

Maternal great. great-grandfather (D.K.) (43)

G reat-grandf ather (19)

[ Paternal great-grandmother (20)’

Great-grandaunt

I

Son

I

Maternal

great-grandaunt

I

Son (D.K.) (47)

Maternal great-grandfather Maternal

(D.K.) (38) great-granduncle (D.K.) (44)

^ ^ 1

Son (22)
Grandson (23)

I I " - -

(Granduncle (21) Grandfather (13) Grandaunt

-* — I

r

Son (D.K.) (45)

1

1 [Grandmother (14) J

Daughter

1 Soil (31)
I (D.K.)

Daughter

I

Son (32)

r

Son (D. B. ; M.)(24)

i

Mat. grandaunt Maternal grandfather

• (D.K.) (33)

Son (D. K. ; M.)(42)

Grandson Daughter
(D.K.) (46) I

.Son (53)

1

Daughter

I

Son (52)

Uncle (15) Father (7)

Aunt

r

Maternal grand-uncle (D.K.) (39)

' 1

Son (D.K.) (40)

(Grandson Daughter

(D.K.) (41) I

Son (51)

Daughter
Son (50)

1

Maternal Mother (8)

r

Maternal uncle (34) (D.B.)

Son(D.K.;M.)(37)

I I

Grandson (D.K.) (36) Daughter

I

Son (49)

Daughter

I

Son (48)

Sod

A

(wife)

C (Owner) Y

1 I I

B (daughter)=x (husband)

grandson

Sister’? daughter and sister’s daughter’s son are not heirs under the Dayabhaga law, Krishna Pada Dutt v. Secretary of State for India (1908)35 Cal. 631: For No. 18 see Radharaman v. Gopal (1920) 31 C.L.J. 81;

No. IT succeeds before 27, Huri Das v. Bama Churn (1833) 15 (Gal. 78). No. 22 succeeds before No. 29 Gopal Chunder v. Haridas C/itni (1885) 11 Cal. 343. No. 21, Gossaien v. Mt» Kishenniunnee, 6 S.D. 77 (90).
No. 27) Gobind Prashad v. Mohesh Chunder (1875) 15 Beng. L.R. 35 ; Digumber Roy v. Mod Lai Bundopadhya (1883) 9 Cal. 563 ; Huri Das v. Bama Churn (1888) .15 Cal. 780. No. 28, Pran Nath Surma v. Surrut
Chundra (1882) 8 Cal. 460 ; No. 29, Guru Gobind v. Anand Lai (1870) 5 Beng. L. R. 15 F.B. No. 31 preferred to No. 34, Kedar Nath v. Hari Dass (1916) 43 Cal. 1 ; Ka/asA Chandra v. Kama Nath (1913) 18 C.W.N. 477.
No. 35, Rany Srimuty Dibeah v. Rany Koond Luta (1848) 4 M.I.A. 292. He takes after the father’s brother’s daughter’s son (No. 29) : Braja Lai v. Jiban Krishna (1899) 26 Cal. 285. No. 37, Deyanath v. Muthoor 6 S.Q. 27 (30).

PARAS. 572-573.] PRINCIPLES OF PRECEDENCE.

701

he stands in exactly the same relation to the son of the niece,
who is mentioned, as the grandnephew does to the nephew (y).

§ 573. The grounds upon which one heir is preferred to
another are as follows:

1. Each class of heirs takes before, and excludes the Principles of
whole of, the succeeding class. “The sapindas are allowed to precedence,
come in before the sakulyas, because undivided oblations are
considered to be of higher spiritual value than divided ones;

and the sakulyas are in their turn preferred to the samano-
dakas, because divided oblations are considered to be moie
valuable than libations of water” ( 2 ).

2. The offering of a cake to any individual constitutes
a superior claim to the acceptance of a cake from him, or
the participation in cakes offered by him. On this ground
the male issue, widow, and daughter’s son rank above the
ascendants, or the brothers who offer exactly the same number
of cakes as the deceased (a).

3. Those who offer oblations to both paternal and
maternal ancestors are superior to those who offer only to
the paternal. Hence the preference of the whole to the
half-blood (6).

4. “Those who aie competent to offer funeral cakes to
the paternal ancestors of the deceased proprietor, are in-
vaiiably preferred to those who are competent to offer such
cakes to his maternal ancestors only; and the reason assigned
for the distinction is, that the first kind of cakes are of
superior religious efficacy in comparison to the second.” And
this rule extends so far as to give a preference to one who
offers a smaller number of the superior oblations over one
who offers a large numbei of the inferior sort (c) .

(y) Prannath v. Surrut (1882) 8 Cal., 460; the right of the brother’s
son’s daughter’s son has been expre<?sly affirmed, Kashee Mohun v. Raj
Gohind 24 W.R., 229; Gum Gobind v. Anand Lull (1870) 5 B.L.R.,
15 F.B., overruling Gohindo v. Woomeih Suth Sp. No. 176 (son of
paternal uncle’s daughter).

iz) Per Muter, J., Gum v. Anand (1870) 5 B.L.R., 15, 38, approved
Gobind V. Mohesh (1875) 15 B.L.R., 35, 47, 23 W.R., 117; Digumber s,
Moti Lai (1883) 9 Cal., 563; Kedar Nath Banerjee v. Hari Das Chose
(1916) 43 Cal.. 1.

(a) Dig., II, 565, 568; Daya Bliaga, XI, 1, §§32-40; XI, 2, §§1, 2;
XI, 5. § 3.

(b) Dig., II, 544; Daya Bhaga, XI, 5, § 12.

(c) Per Miner, J., (1870) 5 B.L.R., 15, 39 (F.B,), supra, note (z) ;
Gobind v. Mohesh (1874) 15 B.L.R., 35, 23 W.R., 117; Braja Lai v.
Jiban Krishna (1899) 26 Cal., 285, affd. in (1903) 30 LA., 81, 30 Cal,
550.

702

SUCCESSION UNDER DAYABHAGA LAW. [cHAP. XlII,

Cognates not
postponed to
agnates.

5. “Similarly, those who offer larger numbers of cakes
of a paiticiilar description are invariably preferred to those
who offer a less numbei of cakes of the same description” (c) ;
and those that are offeied to nearer ancestors are always
piefened to those offeied to more distant ones even when the
numbei of cakes offered to the nearer ancestors are less than
those offered to the reniotei ancestors (d).

6. "The same remaiks are equally applicable to the
sakulyas and samanodakas^ {c) ,

The result of these iiiles m Bengal is, that not only do
all the bandit us come in before any of the sakulyas or
samanodakas, but that the bandhus themselves are sifted m
and out among the agnates, heirs in the female line fiequently
taking befoie very neai sapindas in the direct male line, on
the piinciple of superior religious efficacy (e).

As the Dayabhaga states the lule, “In like manner the appro-
priation of the wealth of the deceased to his benefit, in the mode
which has been stated, should m every c&se be deduced
according to the specified order” ( /) . Mitter, J., thought
that this was a positive injunction to determine every case
1 elating to the law of inhciitance accoiding to the doctrine of
spnitual benefit (gl. But paragraphs 28 to 33 m the sixth
section, coming even aftei the ultimate heirs like the King,
appear to be placed out of their order and to be somewhat
ledundant; probably they were supplemental y reasons for
the Older of succession alieady laid down (/r).

§ 573-A The rules that succession is never in abeyance,
that the full-blood is preferred to the half-blood in a compe-
tition inter se, with its limitation that it must be amongst
sapindas of the same degree of descent from the common
ancestor as well as the lule that a female does not take

id) Prannath v Surrut (1882) 8 Cdl , 460 replacing the earlier
view that the preference was only where the number of cakes
was equal. A person who offers one oblation to the father
»)f the deceased ownei is preferred to another who offers
two oblations to the grandfather and great grandfather. Hence the
grandnephew lanks before the paternal uncle, and the nephew’s
daughter's son before the uncle’s daughter’s son. D. Bh , XI, vi,
§§5. 6.

(e) D. Bh, XI, 6, D.K,S, I, 10, Dig., II, 564 569.

(/) D. Bh, XI, VI, 30, DK.S., I, x, 25.

(g) (1870) 5 BLR, 15, 45, FB. supra, Kedar Nath v. Han Das
(1915) 43 Cal.. 1

{h) D. Bh., XI, VI, 28-33, The rights of the father’s daughter’s
son had been dealt with already in XI, 6, 8, of the maternal uncle,
XI, VI, 12-13, and of the male issue, XI, i, 32-43.

PARAS. 573-A-574.] ORDER OF SUCCESSION.

703

absolutely or become a fiesh stock of descent are the same
under the Dayabhaga as under the Mitakshara law. (i5§4'84,

493) .

The disabilities and defects operating to exclude from
inheritance aie discussed in chapter XV. While the Hindu
Inheritance (Removal of Disabilities) Act, 1928 has largely
repealed the Mitakshara law, it leaves the Dayabhaga law
untouched.

§ 574. The order of succession according to the Daya-
bhaga law is as follows: —

First, the son, the grandson whose father is dead, and the Male issue,
great-grandson whose father and grandfather are both dead,
succeed as heirs. While a man^s son, grandson and great-
grandson all confer equal benefits on their ancestor and have
an equal right of inheritance, according to the Dayabhaga, the
son excludes his own son and grandson as they cannot, while
he is alive, present offerings. So too the grandson excludes the
great-grandson. Accordingly, a grandson whose father is
dead and a great-grandson whose father and grandfather are
dead participate equally in the inheritance with the son (f).

It will be observed that under the Mitakshara, the son,
grandson and great-grandson will take together as a single
heir; for, the grandson and the great-grandson have a right
by birth in the ancestral property which comes to the son(y)

The recent Hindu Women’s Rights to Property Act, 1937,
which confers lights on Hindu women affects the Dayabhaga
law also with the result that the widow takes even in the
presence of male issue for the same share as a son. So also
the widows of a predeceased son and of a predeceased son
of a predeceased son are entitled to inherit, both along with
the male issue and the widow and in their default, for the
prescribed shares.

The illegitimate son a Sudra has the same rights of sue- Illegitimate
cession under the Dayabhaga law as under the Mitakshara
law (A).

§ 575. Widow: — Except where the succession is governed Widow,
by the Hindu Women’s Rights to Property Act, 1937,
the widow will only take in default of male issue as before.

(i) D. Bh., Ill, 1, 18-19, XI, 1, 32-34; D.K.S., I, 1, 3.

(/) For the Mitakshara view, see Viramit., II, 1, 23-a, Sellui’s
ed., 341-343; Marudayi v. Doraisami (1907) 30 Mad., 348. See note
(A:i) to §526.

(A) D. Bh., IX, 25-31; D.K.S., VI, 32-35; Rajani Nath v. Nitai
Chandra (1921) 48 Cal., 643 F.B.; sec ante §§527-529.

704

SUCCESSION UNDER DAYABHAGA LAW. [CHAP. Xlll,

Chastity

condition

precedent.

Jimutavahana discusses elaborately the rights of a widow
and after reconciling various texts establishes her right (/).
He says: “On failure of heirs down to the son’s grandson,
the wife, being inferior in pretensions to sons and the rest,
because she performs acts spiritually beneficial to her hus-
band from the date of her widowhood, and not, like them,
from the moment of their birth, succeeds to the estate in their
default” (m). Unlike the Mitakshara, Jimutavahana is
definite about the estate of the widow: “Let her enjoy her
husband’s estate during her life; and not, as with her stri-
dhana, make a gift, mortgage or sale of it at her pleasure” (n).
And he states as an exception the class of case where she
might make a gift, mortgage or alienation (o). It was settled
in Bengal, that a widow succeeds to her husband’s share
when he is undivided, just as she would to the entire pro-
perty of one who held as separated (p). But this did not
apply in case of the widow of a son who died before his
fathei, undivided, and leaving no separate property (q) ;
because in Bengal the son is not a co-sharer with his father,
and therefore has no interest which can pass to his widow (r).

Chastity in the one school as in the other is a condition
precedent to the widow’s right of succession ( 5 ). The rule is
even strictei, because under the Dayabhaga law, the condona-
tion by her husband of her unchastity would not remove the
disqualification {t) , But this condition will not apply to
successions governed by the Hindu Women’s Rights to Property
Act, 1937, whethei m the case of the widow, daughter-in-law
or grand-daughter-in-law (a). Where however the estate has
vested in her, she will not be divested of it by her subsequent
unchastity, as was settled in the leading case of Moniram
Kolita v. Keti Kolitam, itself a Dayabhaga case (v).

(/) D. Bh., XI, 1, Setlur^ edii., 68 81.

(m) D. Bh., XI, 1, 43, Selhii’b cd., 76.

(n) lb,, 57, hetlur’b ed , 80

(o) D Bh , XI, 1, 61-62.

(p) D. Bh, XI, 1, §§25, 26, 27, D K S., II, 2, §41, F. MacN , 5.
See cases 1 M Dig, 316, Durga Nath v. Chintamoni (1903) 31
Cdl., 214.

{q) F. MacN., 1

(r) But It IS now olheiwibc under the Hindu Women’s Rights to
Property Act, 1937.

(s) Moniram Kolita v. Ken KolUani (1880) 7 LA., 115, 5 Cal.,
776, Khettermom v. Kadanibim (1912) 16 C.W.N., 964.

U) Rani Dassya v. Golapi Dassya (1930) 34 C.W.N., 648.

(m) Post §§593, 600.

(t;) (1880) 7 I.A., 115, 5 Cal., 776.

PARAS. 575-576.] ORDER OF SUCCESSION.

705

Where a man leaves more than one widow, they take
jointly with rights of survivorship and their rights are the
same as under the Mitakshara law (u;).

§ 576. In default of the widow, the daughter succeeds
as an heir. Her right was put upon the ground that she
produced sons who could present oblations (a;). Jimuta-
vahana therefore laid down that no daughter could inherit
unless she had, or was capable of having, male issue,
and the logical result was the exclusion of daughters who
were sonless widows, or barren, or who appeared to have an
incapacity for bringing any but daughters into the world (y).
According to the Dayabhaga law, a daughter is under the
same obligation of chastity as a widow. Therefore as the
law is now settled, her incontinence will deprive her from
taking the estate, but will not divest the estate vested in
her (z).

According to the doctrine of the Bengal school the un-
married daughter is first entitled to the succession; if there
be no maiden daughter, then the daughter who has, and the
daughter who is likely to have, male issue aie together
entitled to the succession, and on failure of either of them,
the other takes the heritage. In no circumstance can the
daughters who are either barren, or widows destitute of male
issue, or the mothers of daughters only, inherit the
property («). These distinctions under the Dayabhaga are

{w) Ante § 531.

toe) See per Milter, J., Gutiga v. Shumboonath W.R., 393;
Jagannatha, l)ig., II, 522-540.

(y) D. Bh., XI, 11 , 1-3; D.K.S., 1, in, 5, Benode v. Purdhan 2
W.R.C.R., 176, 177; Radha v. Raja Ram 6 W.R., 147; Binodini v.
Susthee (1921) 48 Cal., 300; Pramila v. Chandra Shekar (1921) 43
All., 450. This principle is also adopted by the author of the Smriti-
chandnka, who necessarily excludes barren daughters: XI, ii, 10, 21;
but his view is not accepted in South India, Simmani v. Muttammal
(1879) 3 Mad.. 265.

(z) Raniananda v. Raihishore (1895) 22 Cal., 347; Sundari v.
Pitambari (1905) 32 Cal., 871; Bhaba Kanta v. Kerpai Chutia A.I.R.
1935 Cal., 144, 38 C.W.N., 1095. The Dayabhaga (XI, 2, 8) and the
Dayakrama Sangraha (I, iii, 4) both quote in support of the daughter's
right of succession a text ascribed to Bnhaspati which states that she
must be virtuous. Raghunandana takes the word 'wife* occurring in a
passage relating to the rules of succession as applying to females
generally and expressly states their obligation to be chaste. See
Ramnath v. Dwrga (1878) 4 Cal., 550, 554.

(fl) See also 2 W. MacN., 39, 44, 46, 49, 58; V. Darp., 166, 172;
Anon, 2 M. Dig., 17; Binode v. Purdhan 2 W.R., 176. But
since a widowed daughter may now re-marry (§533) and have
male issue, it has been held that even in Bengal widowhood
is not per se an absolute ground of exclusion, Bimola v.

47

Several

widows.

Daughter.

Cbaetity.

Precedence

among

daughlmK.

706

SUCCESSION UNDER DaVaBMACA LAW. [cHAP. Xlll,

They lake
jointly.

Daughtei’s

&on,

but not
his son.

based upon religious efficacy (6). Where there are several
daughters, they take jointly with rights of survivorship and
their rights are exactly the same as in the Mitakshara
school (c).

On the death of a daughter, who had succeeded before her
marriage to her father’s estate to the exclusion of her married
sister, the estate so inherited by her devolves upon her mar-
ried sister who has or is likely to have male issue and not
upon her own son (rf). Where two daughters succeeded
jointly to their father’s estate and on the death of one of
them, the survivor is a childless widow, she will take the
whole estate by survivorship; for that which would have been
an original disqualification to her taking will not operate
after she has once taken (e).

§ 577. Daughter’s son succeeds in default of the
daughter (f), Jimutavahana rests his right on the ground of
leligious efficacy: “As the daughter is heiress of her father’s
wealth in right of the funeral oblation which is to be
presented by the daughter’s son, so is the daughter’s son owner
of the maternal grandfather’s estate in right of offering that
oblation, notwithstanding the existence of kindred, such as
the father and olheis” (g). The daughter’s son’s son how-
ever though he is within the degree of sapmda relation as
defined by the Dayabhaga is excluded, since he is unable to
confer any spiritual benefit on the deceased (h). Apparently
he IS not an heir even when there is no one alive who can
confer spiiitual benefit.

Dangoo 19 W.R., 189. A widowed daughter who, at the time the
succession opens, has a son who is dumb, but not shown to be in-
curably so, may inherit It was not decided whether she would have
been excluded, if it could be shown that the defect was congenital
and incurable, (.haru Chunder v Nobo Sundari (1891) 18 Cal, 327.
See also Binodini Hazvani v Susthee Hazvani (1921) 48 Cal, 300,
Mokund Lai v. Monmohini (1914) 19 CWN, 472; Srimati

Pramila Devi v. Chandra Shekhar Chatter ji (1921) 43 All., 450.

{b) D. Bh, XI, 11, Ml, 15, DKS., I, iii, 2-15.

(c) Ante § 535.

(d) Tuwrnoniv Niborun (1882) 9 Cal, 154, FB.,D Bh., XI, ii, 30;
but see 1 W. MacN., 24; D.K.S., I, iii, 3, per curiam, Dowlut Kooer v.
Burma Deo (1874) 14 B.L.R., 246 (note), 22 W.R , 54, affd. 22 W.R.,
496.

(e) Aumirtolall v. Rajanee Kant (1875) 2 lA, 113, 23 W.R., 214.

(/) D. Bh., XI. II. 17-29, DKS, I, ,v.

ig) D. Bh, XI, if. 17.

(A) D. Bh., XI, 11 , 2, Nepaldas v. Probhas Chandra (1925) 30
C.W.N., 357, Sambhiiy. Kartuk (1927) 54 Cal., 171.

t»ARAS. 57S-580.] OftbER OF SUCCESSION. ^07

§ 578. Parents: — In Bengal it is quite settled that the
father takes before the mother, both on the express authority ®
of Vishnu, and upon principles of religious efficacy (i). But
an unchaste mother is excluded from succeeding to her
son (y). She does not however lose her right as heiress to
her son by reason of her second marriage prior to her son’s
death. According to Bengal law a step-mother does not sue- Step-mother,
ceed to her step-son. This would necessarily be so upon the
principles of Jimutavahana, as she does not participate in the
oblations offered by such step-son (A:).

§ 579. In default of the mother, the brothers succeed (/). Brother.
Jimutavahana states that the brother is inferior to the mother
but superior in point of religious efficacy to the nephew.

And among brothers, the full-blood is preferred to the half-
blood on the ground that the former offer oblations to the
ancestors of the deceased both on the male and the female
side, while the latter offers oblations in the male line
only(ni). Brothers of the half-blood do not take the un-
divided estate along with brothers of the whole blood, unless
the former are undivided and the latter divided (n). Wheie
no preference exists on the ground of blood, an undivided
brother always takes to the exclusion of a divided brother,
whether the former has re-united with the deceased or has
never severed his union (o).

§ 580. A brother's son inherits in default of brothers.

There is the same order of precedence between sons of
brothers of whole and half-blood and between divided and
undivided nephews as prevails between brothers (p).

Brother’s
son and
grandson.

U) Vishnu, XVII, 6, 7, D. Bh., XI, hi; D.K.S., I, iii; 2 W. MacN.,
54, Hemluta v. Coluck Chuiider 7 S D., 108 (127).

(/) Ramnath v. Durga (1879) 4 Cal., 550; Rajabala v. Shyania
Charan (1911) 22 C.W.N., 566; Trailokya Nath v. Radha Sundan
(1919) 30 C.L.J., 235.

{k) D. Bh., Ill, 11, §30, XI, VI, §3; D.K.S., VI, §23; VII, §3;
2 W MacN., 62; Tahaldai v. Gaya Pershad (1912) 37 Cal., 214; Sunder
Mam Dei v. GokuUtnanda Chowdhury (1913) 17 C.L.J., 405, 18 C.W.N.,
160.

(/) D. Bh., XI, V, 1-3; D.K.S., I, vii.

(m) Susheela Sundan v. Bishnu Pada (1933) 60 Cal., 636, 639;
see Neel Kisto v. Beer Chunder (1869) 12 M.I.A., 523, 539, 541.

(n) Rajkishore v. Gohind Chunder (1875) 1 Cal., 27; affirmed
Shea Soondary v. Pirthee (1877) 4 I. A., 147, 153.

(o) Jadubchunder v. Benodbeharry (1864) 1 Hyde, 214; Kesah*
ram v. Nandkishor (1869) 3 B.L.R. (A.C.J.), 7, 11 W.R., 308.

ip) D. Bh., XI, V, 2-3; XI, vi, 1-2; D.K.S., I, viii, 1; Akshay
Chundra v. Han Das (1908) 35 Cal., 721, 724.

708

BANDHUS EX PARTE PATERNA.

[chap, xin,

Bandhus
ex parte
paterna.

Sister’s son.

A brother’s grandson conies in next after the nephew;
he is entitled to succeed as a sapinda, since he offers an
oblation to the father of the deceased owner {q) , On the
same principle the brother’s great-grandson is excluded as a
sapinda though he conies in latei as a sakulya. The same
distinction as to whole and half-blood prevails as in the
case of brothers (r).

§ 581. The radical difference between the system of
the Dayabhaga and of the Mitakshara is that the former
allows the bandhus, that is the bhinnagotra sapindas, to come
in along with, instead of after, the gotraja sapindas, the prin-
ciple of religious efficacy being the sole test applied in
deciding between rival claimants. Upon examining the
application of this principle, it will be seen in the first place,
that all the bandhus ex parte paterna come in before any of
those ex parte materna. The reason is that the former pre-
sent oblations to paternal ancestors, which are of highei
efficacy than those presented by the latter to maternal ances
tors ( 5 ). As regards the position inter se of the bandhm
ex parte paterna, it will be seen by a reference to Table (
(§570), that every one of them is a daughter’s son in the
branch where he occurs. Only three of these are mentioned
in the Dayabhaga — viz., the sons of the daughters of the
father, the grandfather, and the great-grandfather, respec-
tively; and these are ranked immediately after the male issue
of those ancestors, that is, they come in before the males of
the branch next above them, just as the daughter’s son of
the owner comes in before his father, brothers, nephews, and
grandnephews (^). Accordingly on failure of the brother’s
grandson, the succession goes to the sister’s son as he presents
three funeral oblations to the paternal ancestors of the

{q) D K.S , I, IX, 1.

(r) D. Bh., XI, VI, 6, 7; D.K.S., I, ix; Digumber Roy v. Moti Lai
(1883) 9 Cal., 563 (F.B.).

(5) D. Bh, XI, vi, §§ 12, 20; D.K.S., I, x, § 14; Dig., II, 544, ante
§ 573, rule 4. So the great-grandfather’s son’s daughter’s son is pre-
ferred to the maternal uncle, Kedar Nath Saner jee v. Haridas Ghose
(1916) 43 Cal, 1, following Kailash Chandra Karuna Nath (1913)
18 C.W.N., 477.

(^) D. Bh., XI, VI, §§8-12, Dig., II, 547; V. Darp., 224. Accordingly
the sister’s son has been held to take before paternal uncles (2
W. MacN., 84), Sambochunder v. Gunga 6 S.D., 234 (291), and their
issue (1 W. MacN., 28) , Rajchunder v. Goculchund 1 S.D., 43 (56) ,
2 W. MacN., 85, 87; Kurunay. Jai Chandra 5 S.D., 46 (50); Kishen

V. Tarim, ib , 55 (66) ; Lakhi v. Bhairah, ib , 315 (369) ; W & B, 474;
Duneshwar v. Deoshvnker Moms, Pt. II, 63; Brojo v. Sreenath Bose
9 W.R., 463. A fortiori before the issue of the great-grandfather (2

W. MacNn., 89, 90). But he takes after the son of a half-brother
(2 W. MacN., 68, 82).

PARAS. 581*582.] PLACE OF BANDHUS.

709

deceased who are his own maternal ancestors (u). A half-
sister’s son is entitled to inherit equally with the full sister’s
son (v).

The Daya-krama-sangraha introduces a new series of
bandhus, viz., those who occupy the position of sons of the
nieces of the father, grandfather, and great-grandfather. It
follows the Daya Bhaga in making the daughter’s son succeed
the male issue of each branch, and places the niece’s sons
immediately after the daughter’s son (w).

Though they are recognised as heirs, as regards their
order, on the interpretation of the Dayabhaga, it has been held,
differing from the Daya-krama-sangraha, that after the father’s
daughter’s son (sister’s son), the succession of the paternal
grandfather, great-grandfather, their sons, grandsons and
great-grandsons as also their daughters’ sons would be in the
same order as in the case of the father, his son, grandson and
great-grandson. And on this view the brother’s daughter’s
son would find no place just after the sister’s son (:r).

§ 582. Accordingly after the sister’s son, the succession
ascends to the paternal grandfather and the paternal grand-
mother and goes to their descendants in the degree of sapinda,
namely, the paternal uncle, paternal uncle’s son and the

(u) D. Bh., XI, vi, 8; D.K.S., I, x, 1; Guru Govind v. Anand Lai
(1870) 5 B.L.R., 15 F.B., but neither a sister’s daughter nor her son
is an heir: Kalee Per shad v. Bhoirabee 2 W.R.C.R., 180; Krishna Pada
V Secretary of State (1908) 35 Cal., 631.

(v) Bhola Nath v. Rakhal Dass (1884) 11 Cal., 69 approved in
Jatindranath v. Nagendra Nath (1932) 58 T.A., 372, 375, 59 Cal., 576
(Mitakshara case) , Shashi Bhushan v. Rajendra (1913) 40 Cal, 82, 86.

(to) D.K.S., T, X, 1, 2, 8, 9, 12, 13. It does not mention the sons
of the grandniece in each branch, but their title is exactly of a similar
nature, and has been affirmed to exist; Kashee Mohun v. Raj Gobind
24 W.R., 229; Prannath v. Surrut (1882) 8 Cal., 460.

(x) Huri Das v. Bama Churn (1888) 15 Cal., 780, 796; Gobind
Proshad v. Mohesh Chunder (1875) 15 B.L.R., 35, 23 W.R.C.R., 117;
In re Oodoy Churn Mitter (1878) 4 Cal., 411; Pran Nath v. Surrut
Chundra (1882) 8 Cal., 460, 463-464; Digumber Roy v. Moti Lai
(1883) 9 Cal., 563 F.B., overruling Kashee Mohun v. Raj Gobind (1876)
24 W.R., 229 (brother’s daughter’s son was preferred to the great-
great-great-grandfather’s great- great-great-grandson) ; Kedar Nath v.
Amnta Lai (1912) 17 C.W.N., 492 (father’s brother’s daughter’s son
preferred to great-great-grandfather’s great-grandson). The passages
referring to brother’s daughter’s son and uncle’s daughter’s son in the
Daya-krama-sangraha are regarded as an interpolation in Gobindo v.
Woomesh W.R. Sp. F.B. 176 and Huri Das v. Bama Churn (1888)
15 Cal., 780. They are said to be not interpolations, but marginal
annotations, not part of the book and of no authority. Bhattacharya,
H.L., 2nd ed., p. 503.

Paternal

grandfather

and

grandmother.

710

SUCCESSION UNDER DAYABHAGA LAW, [cHAP. XIII,

and their
descendants.

Paternal great-
grandfather,
great-grand-
mother, their
agnate and
cognate
descendants.

Other
cognates
ex parte
paterna.

Bandhus
ex parte
materna.

paternal uncle’s grandson (y). The succession next goes
to the first cognate descendant of the paternal grandfather,
namely, the paternal aunt’s son (ir).

The succession ascends again to the paternal great-
grandfather, the paternal great-grandmother and goes
to their three agnate descendants and to their first cognate
descendant, namely, father’s paternal uncle, and his son (a)
and grandson, and to the father’s paternal aunt’s son (6).

§ 583. Then come in accordance with the opinion of
Jagannatha and with the scheme of succession suggested in
Hari Das v. Bama Churn (c), and with the decision in Braja
Lai V. Jiban {d) the eight cognate descendants of the owner,
his father, grandfather and great-grandfather, namely, son’s
daughter’s son, son’s son’s daughter’s son, brother’s daughter’s
son(e), brother’s son’s daughter’s son(/), paternal uncle’s
daughter’s son (g), paternal uncle’s son’s daughtei's son,
paternal grand-uncle’s daughtei’s son and paternal gi arid-
uncle’s son’s daughter’s son. All these succeed before
cognates ex parte rnaterna (d),

§ 584. On failure of any lineal descendant of the
paternal great-grandfather down to the daughter’s son who
might present oblations in which the deceased would partici-

(y) D. Bh., XI, VI, 9, DKS, I, x, 5-7, Gobind Proshad v. Mohedi

Chunder (1874) 15 B L R , 35, 23 W R C R , 117, In re Oodoy Churn

(1878) 4 Cal, 411; Gopal Chunder v. Haridas (1885) 11 Cal., 343,

Hun Das v. Bama Churn (1888) 15 Cal, 780, 791

(z) D. Bh, XI, VI, 9, D.KS, I, x, 8.

(a) Gopal Chunder v Haridas (1886) 11 Cal, 343 (father’s

paternal uncle’s son prefeired to paternal uncle’s daughter’s son).

ib) D. Bh, XI, VI, 9.

(f ) (1888) 15 Cal, 780, 793-796, see aKo Prannath Surma v Siinut
Chundra (1882) 8 Cal, 460, 463-4.

id) (1899) 26 Cal, 285, 291 affd in (1903) 30 lA, 81,
30 Cal., 550 (where the father’s brother’s daughter’s son was
preferred to mother’s brother’s son) In Kailash Chundra v
Karuna Nath (1913) 18 CWN, 477 followed in Kedar Nath

v. Haridas (1915) 43 Cal, 1, the paternal granduncle’s son’s

daughter’s son was preferred to maternal uncle In 26 Cal , 285,
291, It was observed “The view we take that the father’s brother's
daughter’s son comes in the order of succession before the maternal
line IS in accordance with the opinion of Jagannatha f Colebrooke’s
Digest, Book V, Ch viii. Sec, 1, V 434 commentary, Madras edn.,
Vol. II, p 567)”.

(e) Digumber v. Mon Lai (1883) 9 Cal., 563; (1888) 15 Cal., 780
supra,

if) (1882) 8 Cal., 460 supra

(g) Gurubind v Anand Lai (1870) 5 B.L.R., 15 F.B.; Gopal
Chunder v. Haridas Churn (1885) 11 Cal, 343, Braja Lai v. Jiban
(1898) 26 Cal, 285; Kedar Nath v. Amnta Lai (1912) 17 C.W.N., 492*

PARAS. 584-585.] BANDHUS EX PARTE MATERNA.

711

pate, the succession goes to bandhus ex parte mcUerna who
offer oblations to the maternal ancestors of the deceased
which he was bound to offer such as the maternal uncle and
the rest in the order of oblations (A). Accordingly, the
maternal grandfather and his three sapinda descendants and
his first cognate descendant, namely, the maternal uncle (i)»
maternal uncle’s son (/), maternal uncle’s son’s son (k) and
the maternal aunt's son are his next heirs (/).

The next heirs are the maternal great-grandfather, the
mother’s paternal uncle, his son and grandson and the
mother’s paternal aunt’s son (m).

After these come the maternal great-great-grandfather and
his son, grandson and great-grandson and his daughter’s
son (n) . It would seem that neither the daughter’s son’s son,
nor the sister’s son’s son, nor the paternal aunt’s son’s son
nor the daughter’s son’s sons of any paternal or maternal
ancestor are recognised as heirs in the Dayabhaga School
on the ground that though they are within the degree of
sapinda, they do not confer any spiritual benefit on the de-
ceased (o). This is based on the assumption as to which
there is difference of opinion (p) that spiritual benefit is not
only a guiding principle as to the order of succession, but is
the sole test of the right of succession itself, so that in its
absence a person is excluded altogether, though on grounds
of propinquity, his claim would be admissible.

§ 585. Jagannatha does not mention as heirs taking be- Other
fore the sakulyas, the son’s daughter’s son and the grand- cognates.

(h) (1898 ) 26 Cal., 285, 291 supra, Jimutavahana hardly

notices the bandhus ex parte maternd, merely alluding to them
as “the maternal uncle and the rest,” who come in “on
failure of any lineal descendant of the paternal great-grandfather, down
to the daughter's son” (D. Bh., XI, vi, 12-14). Sri Krishna, however, sets
out their order very fully, adopting the same principle as he had done
in regard to the other sapindas. He gives the property first to the
mother’s father, and his issue, that is, the maternal uncle, his son, and
grandson, then to the daughter’s son of the mother’s father, then to
the line of the mother’s grandfather, and great-grandfather, in similar
manner, D.K.S., I, x, 14-21.

(i) D.K.S., I, X, 15; Pudma Coomari v. Court of Wards (1882)

8 T.A., 229, 8 Cal., 302.

(y) Braja Lai v. ]iban Krishna (1898) 26 Cal., 285; Srimuty
Dibeah v. Koond Luta (1847) 4 M.T.A., 292.

ik) D.K.S., I, X, 16.

(/) Dig., II, 567, Deyanath v. Muthoor 6 S.D., 27 (30).

(m) D.K.S.. I, X. 17.

(n) D.K.S., I, X, 19-20.

(o) Nepaldas v. Probhas Chundra (1925) 30 C.W.N., 357; Sambhu
Chandra v Kartik Chundra (1927) 54 Cal., I7L

(p) See ante §566,

712

REUNION.

[chap. XIII,

Sakulyas and
aamanodakas.

Succession to
a reunited
coparcener.

son’s daughter’s son of each of the three maternal ancestors,
while he mentions as heirs the son’s daughter’s sons and the
grandson’s daughter’s sons of the deceased himself and his
three paternal ancestors as taking before the maternal
grandfather {q). If on the analogy of the eight bandhus ex
parte paterna mentioned by Jagannatha, these bandhus ex
parte materna are admitted as heirs on the ground that they
offer oblations to one or more maternal ancestors of the
deceased, their place would seem to be immediately before
the sakulyas as the former are in the degree of sapinda and
as their undivided oblations are of higher spiritual value
than the divided ones offered by a sakulya (r).

§ 586. On failure of all agnate and cognate sapindas, the
sakulyas and samanodakas who are all agnates inherit the
property left by the deceased. The order of succession
amongst them will be governed by the same rules as apply
to sapindas ( 5 ). On failure of these, the heiis are the spiritual
preceptor, the pupil and the fellow-student ( 5 ^) ; in their
default, the Crown ( 5 ^).

^ 587. Reunion (samsiishta) implies a state of union
and jointness, a paitition, and a subsequent union or joint-
ness between coparceners through affection. Under the
Dayabhaga law as under the Mitakshara law, it can
only take place between father and son, brothers,
paternal uncle and nephew Spiritual efficacy does

not control succession in such a case ‘The reason
for inheritance by a reunited coparcener is not spiritual
benefit, but a quasi-contractual relation and affection for
each other” ( 14 ). On the death of a reunited coparcener, a
reunited son will exclude a separated son, a leunited brother
would be preferred to a separated brother, and a reunited

iq) Dig, II, 567

(r) G. C. Sarkar Sastri’s view appears to be different* HL, 614
(7th ed).

( 5 ) D. Bh , XI, vi, 15-23, D.KS., I, x, 14-25. These take first in
the descending line and then in the ascending. D Bh., XI, vi, 22;
Gurugobind v. Anand Lai (1870) 5 BLR., 15, 39, F.B.

( 5 1) D. Bh., XI, vi, 24; D.K.S., I, x, 27-28.

( 52 ) D. Bh., XI, vi, 27; DK.S., I, x, 30-32. Persons of the same
rishi gotra, whether inhabitants of the same village or not and Brahmins
are mentioned as heirs entitled to take before the Crown (D. Bh , XI,
vi, 25-26). Of course, they can have now no legal rights. Their rights
must have long ago ceased to be in force.

it) D. Bh., XII, 3-4; Abhai Churn v. Mangal Jana (1892) 19 Cal.,
634; Ram Narain v. Pan Kuer (1934) 62 I.A., 16; see ante §§467-470.

(it) Akshay V. Han (1908) 35 Cal., 721, 726.

PARA. 587 .] SUCCESSION UNDER DAYABHAGA LAW.

nephew to a separated nephew or uncle. In Abhai Churn v.
Mangal Jana, it was held that where the descendants of a
reunited coparcener continue to be the members of the re-
united family, the special rules of inheritance applicable to
the succession of reunited coparceners will apply also to the
succession amongst their descendants (v).

(f^) (1892) 19 Cal. 634; (1908) 35 Cal. 721 supra.

CHAPTER XIV.

THE HINDU WOMEN’S RIGHTS TO PROPERTY ACT.

§ 588. Brief references to some of the alterations in
Hindu law effected by the Hindu Women’s Rights to Property
Act, XVIII of 1937, have been made in several places in
this book. The exact meaning and scope of the Act have
not yet been the subject of decisions. The Act will probably
in its interpretation and application give rise to unexpected
difficulties. An examination of the main provisions of the
Act and their effect is necessary to complete the discussion
of the law of succession and of coparcenary.

The Act came into force on the 14th April 1937 and has
no retrospective operation As the Act was considered to
be defective, it was amended by the Hindu Women’s Rights
to Property ( Amendment ) Act, 1938, which was declared
to have retrospective effect as from the 14th April 1937. Even
after the amendment, the Act remains defective and
o|)scure (a) .

§ 589. The Act is as follows: —

‘‘Wheieas it is expedient to amend the Hindu law to give
better rights to women in respect of property;

It is hereby enacted as follows: —

Sec. 1. (1) This Act may be called The Hindu Women’s
Rights to Property Act, 1937.

(2) It extends to the whole of British India, including
British Baluchistan and the Sonthal Parganas but excluding
Burma.

Sec. 2. Notwithstanding any rule of Hindu law or custom
to the contrary, the provisions of section 3 shall apply where
a Hindu dies intestate.

Sec. 3. (1) When a Hindu governed by the Dayabhaga
School of Hindu law dies intestate leaving any property, and
when a Hindu governed by any other school of Hindu law
oi by customary law dies intestate leaving separate property,
his widow, or if there is more than one widow all his widows
together, shall, subject to the provisions of sub-section (3),

in) For the validity of ihe Art, see ante § 50-

PARAS. 589-590.] CHANCES EFFECTED BY THE ACT.

715

be entitled in respect of property in respect of which he dies
intestate to the same share as a son:

Provided that the widow of a predeceased son shall inherit
in like manner as a son if there is no son surviving of such
predeceased son, and shall inherit in like manner as a son’s
son if there is surviving a son or son’s son of such predeceased
son;

Provided further that the same provision shall apply
mutatis mutandis to the widow of a predeceased son of a
predeceased son.

(2) When a Hindu governed by any school of Hindu
law other than the Dayabhaga school or by customary law
dies having at the time of his death an interest in a Hindu joint
family property, his widow shall, subject to the provisions of
sub-section (3), have in the property the same interest as he
himself had.

(3) Any interest devolving on a Hindu widow under
the provisions of this section shall be the limited interest
known as a Hindu Woman’s estate, provided however that she
shall have the same right of claiming partition as a male
owner.

(4) The provisions of this section shall not apply to
an estate which by a customary or other rule of succession
or by the terms of the grant applicable thereto descends to
a single heir or to any property to which the Indian Suc-
cession Act, 1925, applies.

Sec. 4. Nothing in this Act shall apply to the properly
of any Hindu dying intestate before the commencement of
this Act.

Sec. 5. For the purposes of this Act, a person shall be
deemed to die intestate in respect of all properly of which
he has not made a testamentary disposition which is capable
of taking effect.”

§ 590. The Act replaces the rule of Hindu law recog-
nised in all the provinces except in Madras where it has
become obsolete, that a widow was entitled to a share when
her sons or her step-sons actually divided the estate between
themselves (b). Now in all the provinces including Madras,
the Act vests in her on her husband’s death the right to the
same share as a son along with her sons or step-sons, indepeiid-

(6) Pratapmull Agarwalla v. Dhanahati Bibi (1936) 63 I. A., 33,

63 Cal.. 69L

Changes
effected by
the Act.

716

CHANGES EFFECTED BY THE ACT.

[chap. XIV,

ent of any partition which may or may not be entered into by
them. In Madras of course the change effected by the Act is
much greater. What is more, it repeals in all the provinces
the older rule according to which a widow succeeds only on
failure of male issue. For instance, even where her husband
leaves an only son and there can be no question of parti-
tion, she succeeds along with him for the share of a son.
Evidently following the view of Visvarupa (§429), the Act
makes a widowed daughter-in-law and a widowed grand-
daughter-in-law entitled to share along with, or in default of,
the male issue and the widow. It brings the Mitakshara
and the Dayabhaga systems closer together by conferring upon
the widow of a member of an undivided family the right to
inherit his coparcenaiy interest. And in every case she will
be entitled to enforce a partition.

While the object of the Act is to confer new
rights of succession upon the widows mentioned in it,
it not only alters the order of succession, but involves far-
reaching consequences in many departments of Hindu law,
particularly in the law relating to a Mitakshara coparcenary.
Where the provisions of the Act are clear, effect of course
must be given to them. But the legislature may well be pre-
sumed to have left Hindu law unaltered m other respects. The
Act must therefore be so construed as not to create a greater
departure from Hindu law than it necessarily implies (b^).
The definition introduced by the amending Act of intestacy in
section 5 does not remove the difficulty created by the words
‘dies intestate’ in section 2 as to the scope and operation of
sub-sec. (2) to section 3. The intention of the legislature
evidently is that sub-section (2) to section 3 should apply
in every case and that is why the inappropriate words ‘dies
intestate’ which stood in that sub-section were repealed.
Those words should also have been omitted from sec. 2. As
the Act stands, on a strict construction, sub-sec. (2) to sec. 3
can apply only when under section 2 a Hindu dies intestate,
especially as those words are not required in connection with
section 3 ( 1 ) , being already there. If therefore he has made
a complete and valid disposition of all his separate and
self-acquired property, he cannot be said to have died in-
testate. But as intestacy cannot by any legal possibility be
a condition of operation of sub-sec. (2) to sec. 3, the words
‘dies intestate’ in sec. 2 must be treated as surplusage having
no sensible meaning, to avoid an absurd result (6^).

(6^) Secretary of State for India v. Bank of India Ltd, (1938 ) 65
I. A., 286, 298; Maxwell. 7th ed., 71.

(62) Maxwell, 7th ed., p. 204.

PARAS. 590-591] SHARES OP THE FEMALE HEIRS.

717

The Act of course does not affect successions to impartible
estates and other properties which, by custom or grant,
descend to a single heir. As to them, the older law remains
unaffected. The Act applies to all Hindus, whether governed
by the Mitakshara or the Dayabhaga or any other school of
Hindu law or by customary law as in the Punjab (c).

§ 591. According to sec. 3 (1) of the Act even where
a man dies leaving male issue, his widow inherits along with
the male issue his separate property, if he is governed by
the Mitakshara law, or all his property if he is governed
by the Dayabhaga law. The widow will succeed to the
share of a son where there are one or more sons, whether
they are her sons or her step-sons, as well as where there
is only a widowed daughter-in-law or grand-daughter-in-law.
So too she will succeed under the Act when she alone is in
existence. If a man has several widows, all of them
together will be entitled only to the share of a son (d).
The words “the same share as a son” in sec. 3, sub-sec. (1)
are not happy. They cannot possibly mean that there should
be another person than the widow in existence to share with
her. They can only mean as in the proviso that she will
inherit ‘in like manner as a son’, so that the section would
apply both to cases where there is a plurality of heirs and
to cases where the widow alone is the heir and there is
neither male issue nor widowed daughter-in-law nor grand-
daughter-in-law. Similarly the two provisos must be con-
strued as substantive provisions with the result that the
widowed daughter-in-law or grand-daughter-in-law will take
the estate of a man even when there is neither widow nor
male issue. Where the predeceased son has left a son or
grandson, the share of the widowed daughter-in-law will be
that of a grandson. Similarly where the predeceased son,
leaves him surviving only a widow of his predeceased son,
the latter will evidently be entitled to his share. Where a

(c) Marummakkathayam succession is now governed by a provincial
statute and cannot be said to be regulated purely by customary law.
Aliyasantana law is certainly customary law. But the widow of an
Aliyasantana male could succeed under the Act to his property only
if his son would under the Aliyasantana law be entitled to a share.
As the son is not so entitled the Act has no application to Aliya-
santana Hindus.

(d) It alters the older lule; see Damoodur v. Senabutty (1882)
8 Cal., 537; Damodardas v. Uttamram (1893) 17 Bom., 271; Kristo
V. Ashutosh (1886) 13 Cal., 39.

In the law of
succession.

718

tlEVfiftTER ON TH^IR DEATtl.

[cttAR. XiV,

predeceased son leaves him surviving a son as well as the
widow of a predeceased son, the latter will be entitled to the
share of a grandson But where the predeceased son of a
predeceased son has left both a son and a widow surviving,
the latter will be entitled to the share of a great-grandson.

The estate taken by the widow, the widowed daughter-in-
law, or the widowed grand-daughter-in-law, will only be
“the limited interest known as a Hindu woman’s estate” by
virtue of sec. 3 (3). This takes effect notwithstanding any
rule of Hindu law or custom to the contrary. Accordingly
a Jain or other widow who takes by custom her husband’s
property absolutely or a widow in Mithila who takes her
husband’s movables absolutely will undei the Act take only
a widow’s estate.

Reversionary § 591 -A. While the Act thus defines the inteiest taken by
succession. three female heirs mentioned in it, it does not

say how their inteiests are to devolve on their death. The
course of succession would depend upon the question
whether the female heir took the estate m default
of male issue or in their presence On the death of the
widow of the last male holder, her estate would revert to his
male issue, if any (e) . On the analogy of the reverter of a
share allotted to a mother on partition, the sons, grandsons,
and great-grandsons will succeed as heirs of her husband.
Even though in a sense it may be reversionary succession, the
son will not exclude a grandson, nor the grandson, the great-
grandson. The property which is taken after her death by
the son, grandson or great-grandson will certainly be an-
cestral in his hands (/) . Likewise on the death of the
predeceased son’s widow, where, in default of her husband's
male issue, she has taken the share of a son, hei interest will
pass to the male issue of the father-in-law as his nearest heirs
and as the persons entitled to the estate from which her share
was taken. Where the widow of a predeceased son takes the
share of a grandson only, the Act necessarily implies a re-
verter of her interest to her son or grandson oi to her
husband’s son or grandson. They will be the nearest heirs
to her father-in-law in respect of that share, though not strictly
by right of representation, on the ground that the Act
itself treats the widowed daughter-in-law as taking in like
manner as a son’s son, necessarily implying that the subse-

(e) See Debt Mnngal Prasad v. Mahadeo Prasad (1911) 39 LA,
12L 34 All., 234

(/) Compare Nanabhai v Achat atbai (1888) 12 Rom., 122; Beni
Prasad v. Puranchand (1896) 23 Cal., 262, Ram Prasad v. Rad ha
Prasad (1885) 7 All., 402.

Limited

interest.

PAtiAS. 591a -592.] suttvlvoftshlp kfiPfeAtfil) IN WlDOW^S FAVOUft.

?19

quent devolution of property cannot be upon the basis of
collateral succession. Similarly the interest taken by the
widow of a predeceased son of a predeceased son will revert
on her death to her husband’s branch, as she is allotted a
share out of the property of that branch. These appear to be
the reasonable and probable implications of the Act, though
the language is defective and susceptible of the result that on
the death of the daughter-in-law or grand-daughter-in-law,
her interest would pass to the whole of the male issue and
the surviving female heirs. But the intention of the Act in this
lespect appears only to be to convert the inchoate right of a
widow which existed before it to share along with the male
issue, into a perfect and enforceable right. In the absence of
male issue of the last male holder and of the daughter-in-law and
grand-daughter-in-law, on the death of his widow her interest
will pass to the usual reversionary heirs beginning with the
daughter and the daughter’s son. Whether on the death of
any of the female heirs, the other female heir or heirs will
be reversionary heirs entitled to come in before the daughter
or the daughter’s son is not free from doubt. On the wording
of sec. 3 (3) it would seem that the next heir of the husband
would take the interest of the female heir on her death.
Therefore the other female heir or heirs would come in
before the daughter or the daughter’s son — a consequence
not perhaps intended by the legislature (g). On the death of
the widowed daughter-in-law or grand-daughter-in-law in
default of the male issue of the last male holder, her interest
will revert to his widow, not only as his nearest heir but as
the person who would be the heir under Hindu law apart
from the statute in cases not provided for. And in default of
the widow, it will pass to the daughter, daughter’s son and
the rest.

The right of an illegitimate son of a Sudra to a share in
competition with the widow or a daughter-in-law is neces-
sarily affected by the Act, as the widow or the daughter-in-
law takes the share of a son and he takes a half share only.

§ 592. By far the most important alteration in the
fundamental principles of Hindu law is that introduced by
sub-sec. (2) to sec. 3. In a Mitakshara undivided family, the
widow of a deceased coparcener will have in the joint family
property “the same interest as he himself had”. This devolu-
tion of his interest on her abrogates the rule of survivorship
and makes the undivided interest of a coparcener pass to his

f^) This would mean lhat they take not only once, hut again.
A lid il either is to take again, how is she to inherit like a son or take
a son's share again?

Illegitimate
son’s share
affected.

Alteration in
the law of
coparcenary.

720

DiSttUPtlON ONLY PARTIAL.

[chap. XIV,

widow, even when he leaves male issue. For, the language
of the section is comprehensive, and applies both to cases
where her husband and his sons alone form a coparcenary
and to cases where a coparcener in a joint family dies leaving
either his widow and male issue or his widow only. As under
sub-sec. (3), the interest devolving on her is a Hindu woman’s
estate, she cannot even in the case of a Mitakshara family, be
treated as a coparcener in the strictest sense along with her
sons and the other coparceners though she is undoubtedly a
member of the joint family. When a widow succeeds to her
deceased husband’s interest in a joint family, she takes it
only by inheritance and not by survivorship (h) ; for, she
had no right by birth and she was not a co-owner prior to his
death. There are no words in the Act by which she can be
deemed to be a coparcener and the inteiesl which devolves
upon her is declared to be a Hindu woman’s estate. That
means that on her death it will go to her husband’s heirs
which cannot mean all his coparceners. In other words,
on her death whether before or after partition, her interest
will go to her husband’s male issue who will take it as
ancestral property. Whether they will take it as tenants
in common or as coparcenary property is a different ques-
tion. In the absence of her husband’s male issue, her
interest will pass to the daughter, daughter’s son, or other
heirs of hei husband.

No disruption
of entire
coparcenary.

The Act howevei does not effect a statutory sevei -
ance or disruption of the entire family (i). To interpret
the Act as effecting such a severance would cut across
the recognised principles of Hindu law and would not
make for a rational and orderly succession!/). As the
wives of coparceners are undoubtedly members of a joint
Hindu family (A*), there is nothing incongruous in the
widow of a coparcener being viewed as occupying a position
more or less analogous to the position of a coparcener in
a Dayabhaga family. As the other members of the family
will remain undivided and as she cannot be regarded as the
widow of a divided member, the joint family system and
management will continue as before, probably an advantage.

(h) Katama Nachiar v. Rajah of Sivaganga (1863) 9 M.I.A., 539,
543, 611; Baijnath v. Tej Bah (1921) 48 I.A., 195, 211, 43 AIL, 228,
243 (P.C.).

(i) Compare V enkatarayudu v. Sivaramakrishnayya (1935) 58 Mad.,
126, 135, 140.

(;) See Raghuraj Chandra v. Subhadra Kunwar (1928) 55 I. A.,
139, 149.

ik) Vedathanm v. The Comr, of Income-tax, Madras (1933) 56
Mad., 1; Kalyanji v. Comr. of Income-tax, Bengal (1937) 64 I.A.,
28, 1 1937] 1 Cal.. 653.

1>ARA. 592.] ALTERED POSITION OF COPARCENARY.

721

Except to the extent of the widow taking her husband^s
interest, the Act leaves the rights of the other members of
the family untouched. The result is that while the
deceased coparcener’s interest vests in his widow, his
male issue will continue in the strictest sense to be coparcen-
ers along with the other male members of the family with
mutual rights of survivorship. So also under sub-section (1),
in a Mitakshara family, the sons, grandsons and great-grand-
sons of her husband will be coparceners inter se while the
widow will hold her interest in quasi-severalty but along with
them. To hold that the widow of a coparcener who takes his
interest on his death is strictly a tenant-in-common with the
coparcenary body is not to give full effect to the words in
s. 3 (2), according to which she is to have “in the property
the same interest as he himself had,” apart from the grave
complications which it will involve. On that view, she will
be entitled to an account and for a definite share of the
income, while the others will not be; more than that, it will
lead to anomalies and hardships in connection with the
allotment of shares; and even before partition there would
be separate management and representation and separate
incurring of debt. But evidently the intention of the Act is
'Only to interrupt survivorship and to protect the right of a
widow so that she may have the same interest as if she con-
tinued the legal persona of her husband till partition.

Though if she were assumed to be a coparcener in the
Mitakshara sense, the working of the Act would be easier,
the circumstance that she will hold her interest under the
Act in quasi-severalty does not materially alter the position
•of the joint family in other respects. As in a Dayabhaga
family, the karta or managing member will have all the
usual powers of management till partition. Her interest will
be liable for joint family debts properly incurred and can
be bound by an alienation made by the karta for family neces-
sity or benefit. She may however he able to alienate for value
her share for such purposes as a widow can, even in those
Mitakshara jurisdictions where the alienation of a coparcener’s
interest is not recognised. There is however one question
which presents a greater difficulty: Is the interest which she When interest
takes on her husband’s death under sec. 3 (2) to be the share ascertained,
to which he was entitled at his death or is it the share to
which she would be entitled if she, standing in the shoes of
her husband, were treated as the holder of an undivided co-
parcener’s interest at the time of partition? Having regard
to her position as a member of a joint family, and to the
object of the Act and to the words “the same interest as he
48

722

MAINTENANCE RIGHTS EXTINGUISHED. [CHAP. XIV^

Unchaste

widow.

Remarried

widow.

Maintenance

rights

extinguished.

himself had”, she cannot be deemed to be in a better positiorr
than her husband if he had lived. The analogy of an alienee-
for value whose special equity is worked out by assigning to*
him the share of his alienor as ascertained on the date of the
alienation (/), will not be applicable. The language of the
Act is by no means free from ambiguity. The in-
conveniences and hardships resulting from an opposite view
may therefore be taken into consideration in the interpreta-
tion of such an ill-drawn Act. To take only one illustration,
suppose A has a son B. B predeceases A leaving his widow
C. She will get a half share in the family estate if it is to be
ascertained on the date of her husband’s death. A begets two
more sons D and E after the death of B. On the assumption
that she gets one-half. A, D and E will only get one-third of
one half, i.e., one-sixth each. The anomaly of a widow hold-
ing a woman’s estate in the undivided property of her
husband must necessarily be dealt with as a special case; the
interest she takes may well be a fluctuating interest till there
is a partition (m) .

§ 593. As the Act confers upon the widow a right of
succession notwithstanding any rule of Hindu law, an
unchaste widow will not be disqualified from inheritance.
Similarly the rights of succession of the widowed daughter-
in-law and grand-daughter-in-law will not be subject to the
condition of chastity even in the Dayabhaga School.
For the same reason the widow will be entitled to succeed,
notwithstanding any ground of disqualification under Hindu
law in either school (n) (§600). But the Act does not

touch the duration of the widow’s estate as determined by
the Hindu Widows’ Remarriage Act, 1856, and the widow
will onl} be entitled to her estate until her remarriage (o).

The rights to maintenance of the widows mentioned in the
Act are not expressly abolished; but it is obvious, that where
they take under the Act, any rights of theirs are, by necessary
implication, extinguished; for Hindu law allows them niain-

(/) Chinnii Pdlai v. Kalimuthu (1912) 35 Mad., 47 F.B ; Aiyyagari
V Aiyyagan (1902) 25 Mad, 690 F.B; Kasi Visvesvara Rao v.
V arahanarasimham A.I.R. 1937 Mad., 631; Contra, Muthukumara v.
Sivanarayana (1933) 56 Mad , 534.

(m) Rangasami v Knshnayyan (1891) 14 Mad., 408 F.B ; (1933)'
56 Mad., 534 supra.

(n) Whether congenital lunacy and idiocy remain disqualihcationE.
under Hindu law only, or have assumed such a statutory character
under Act XII of 1928 as to be unaffected by the new Act may be
a Question.

(o) The language of section 2 of the Remarriage Act will cover
the interest devolving on the death of a coparcener upon his widow..

PARA. 593 .] POWER TO ADOPT UNAFFECTED.

723

tenance only ^‘because of their exclusion from inheritance
and from a share on partition” (p). But the right of a wife
to a share on a partition between her husband and his sons,
in jurisdictions where it is recognised, is not affected and it
would seem that when her husband dies, she may again be
entitled to his share along with the male issue under the Act.

The Act cannot be held to affect the power of adoption Adoption,
which the widow, the widowed daughter-in-law and widowed
grand-daughter-in-law may have under the Hindu law (^).

But the effect of an adoption can no longer be the same.

The rights of an adopted son can only be the same as those
of an aurasa son if he were in existence at the time the
succession opened. Accordingly, where a widow makes an
adoption, she will not be divested of the entire interest vested
in her. She will be entitled to the share of a son; the
adopted son will divest her only of a moiety of the estate
to M'hich he would, apart from the Act, be entitled. Where
however a widow succeeds as mother to her son’s estate, she
will as usual be divested of her entire interest (r).

ip) Vellaiyappa Chetty v. Natarajan (1931) 58 I.A., 402 at 414,
55 Mad., 1 . “The share is taken in lieu of maintenance*’: Srimati
Hemangini v. Kedar Nath (1889) 16 I.A., 115, 124, 16 Cal., 758.

( 9 ) In Piare Lai v. Hem Chand A.I.R. 1938 Lah., 539, it was held
that when a Hindu died leaving his own widow and the widow of a
predeceased son, the power of the latter to make an adoption came
to an end when the property vested in her mother-in-law. This is
a misconception and is opposed to the recent decisions of the Privy
Council in Amarendra v. Sanatan (1933) 60 I.A., 242, 12 Pat., 642 and
Vi jay sing ji v. Shivsangji (1935) 62 I.A., 161, 59 Bom., 360.

(r) See ante §§ 196-201.

Exclusion oi
4li^abfied
heirs.

Not solely on

religious

considerations.

CHAPTER XV.

EXCLUSIOxN FROM INHERITANCE.

§ 594. The Smriti law declares that persons labouring
under certain disabilities are excluded from partition as well
as from inheritance. Originally the disqualification was con-
fined only to those who were incapable of transacting busi-
ness or managing their properties. Gautama lefers only to
an idiot and an impotent man (a) ; and Baudhayana gives
the reason for the disqualification: “Granting food, clothes
and shelter, they shall support those who are incapable of
transacting legal business, viz., the blind, the idiot, those
immersed m vice, the incurably diseased and so forth, those
who neglect their duties and occupations; but not the outcast
nor his offspring” (6).

It has often been stated that the exclusion from parti-
tion and inheritance was based upon the incapacity to
perform sacrifices and religious ceremonies. The answer to
it was given by Sadasiva Ayyar, J., in Surayya v. Subbamma:
**Sudras were never entitled to perform Vedic ceremonies nor
Chandalas and other depressed classes. The law of inherit-
ance and exclusion from inheritance apply not only to the
three castes or Dvijas (entitled to perform Vedic ceremonies)
but to all Hindus It therefore seems impossible to base the
exclusion on incapacity to perform Vedic ceremonies” (c).
According to Dr. Jolly, those who were incapable of work or
trade on account of physical, spiritual or moral defects were
excluded from inheritance (d) . Baudhayana’s bracketing
together the minors and the disqualified heirs (e) and the
illustrations of disqualified heirs in the earlier Dharmasut-
ras { f ) , bear out the view that physical and mental
incapacity according to the standards of those days as well as
incapacity to beget offspring formed the real foundation
of the rules of disqualification. The exclusion of the outcaste

(а) Gautama, XXVIII, 40, 43.

(б) Baudh., II, 2, 3, 37-40; Jolly, T.LL., 271, L & C, 18M82.

(c) (1920) 43 Mad., 4, 14, Yajnavalkya in II, 136 makes the

rule of succession applicable to all, whether or not belonging to the
four classes.

id) Jolly, L & C, 182.

(c) Baudh., II, 2, 3, 36 (minors); 37-40 (disqualified heirs).

(/) Apas., II, 6, 14, 1, 15 (madman, outcaste and eunuch) ; Vas.,
XVII» 54 (eunuch and madman).

PARAS. 594-596.] GROUNDS OF DISQUAUFICATION.

725

and the person ^addicted to evil deeds* was based on social
grounds. The theory that exclusion from succession was
based mainly on religious motives appears therefore to be
an exaggeration. It would be truer to say that the bar on
disqualified persons was imposed not exclusively nor even
primarily on religious grounds but in part on such grounds
and chiefly on physical and mental incapacity. This con-
clusion derives great support from such a materialistic
treatise as the Arthasastra of Kautilya which gives sub-
stantially the same categories of disqualification (g).

§ 595. The Hindu Inheritance (Removal of Disabilities)
Act, 1928, has laid down that no person, other than a per-
son who IS and has been from birth a lunatic or an idiot
shall be excluded from inheritance and partition by reason
only of his disease, deformity, or physical or mental defect.
The Act however does not apply to any person governed by
the Dayabhaga school of Hindu law. It is not retrospective
nor does it remove the disqualification of any person in
respect of any religious office or service or of the management
of any religious or charitable trust. (§48).

§ 596. Manu states the following grounds of disqualifica-
tion: ‘‘Impotent persons and outcastes, persons born blind
or deaf, the insane, idiots and the dumb as well as those
deficient in any organ (of action or sensation) receive no
share” (A). Yajnavalkya says: “An impotent person, an out-
caste and his issue, one lame, a madman, an idiot, a blindmaii
and a person afflicted with an incurable disease are persons
not entitled to a share and are to be maintained” (j). Com-
menting on that verse, Vijnanesvara says: “These persons, the
impotent man and the rest are excluded from partition.
They do not share the estate but must be supported by an
allowance of food and raimant only” (/).

Jimutavahana cites the texts of Manu and Yajnavalkya
and does not appear to differ from the Mitakshara (y) .

(g) Arthas., Ill, 5, 29-33, Jolly’s edn., Shama Sastri, 199.

(h) Manu, IX, 201.

(i) Yajn., 11, 140; Manu, IX, 201-203; Apas., II, 6, 14, 1, 15;
Vas., XVII, 52-54; Vishnu, XV, 32-36; Narada, XIII, 21-22; Dig.,
II, 422, 439; Jha,H.L.S., II, 84-108.

(;) Mit., II, X, 5, 6, 10; Smritichandrika, V; Madhaviya, para. 49;
Sarasvati Vilasa, paras. 146-159; V. May., IV, xi; Viramit., VIII
(Setlur, II, 461) ; Vivadaratnakara, V; Vivadachintamani, 242-246;
Dayabhaga, V; D.K.S., III; Raghunandana, IV (Setlur, II, 483-484).

Disabilities
removed by
statute.

Enumeration
of disqualified
heirs.

Right to

maintenance

only.

726

What defects
must be
congenital.

Mental

infinnity.

Leprosy.

EXCLUSION FROM INHERITANCE. [CHAP. XV,

§ 597. Where it is sought to exclude an heir on the
ground that he is blind, deaf or dumb, it is necessary to
show that these defects are incurable and congenital (A;) . As to
mental infirmity, it has been held that the degree of incapa-
city which amounts to idiocy is not utter mental darkness.
It is sufficient if the person is, and has been from his birth,
of such an unsound and imbecile mind as to be incapable of
instruction or of discriminating between right and wrong. He
must, in short, be one whom it would be impossible to des-
cribe as a reasoning being. Mere want of sound, or even
ordinary, intelligence is not sufficient (/). Insanity to exclude
a person from inheritance need not be congenital (m) . The
rule of Hindu law excluding idiots and madmen from inherit-
ance must be enforced only upon the strictest proof that the
requirements of the law have been satisfied.

§ 598. Leprosy, of course, need not be congenital. Some
cases of leprosy are of a mild and curable form, while others
are of a virulent and aggravated type, and incurable. It is
only the latter form of the malady which causes inability to
inherit (n). Leprosy which does not preclude a man from

(k) Mohesh Chunder v. Chunder Mohun (1875) 14 B.L R , 273
(blindness); Murarji v. Parvatibai (1876) 1 Bom, 177 (blindness);
Gunjeshwar Kunwar v. Durga Prashad Singh (1917) 44 LA, 229, 45
Cal, 17 (blindness), Pareshmam v. Dinanath 1 B L.R. (ACJ), 117
(deaf and dumb); Hira Singh v. Ganga Sahai (1884) 6 All, 322
(deaf and dumb); Vallabhram v. Bai Hariganga (1867 ) 4 Bom. H.C.
(ACJ.), 135 (dumb); Uinabai v. Bhavu (1876) 1 Bom, 557 (blind-
ness); Cham Chunder v. Nobo Sunden (1891) 18 Cal., 327 (dumb-
ness); Pudiava v. Pavanasa (1922) 45 Mad, 949 F.B. (blindness),
Bharmappa v. U jjaingowda (1922) 46 Bom., 455 (dumbness) , Savitri
Bai V Bhabat (1927) 51 Bom, 50 (dumbness); Bhai Pratapgavn v.
Mulshankar A.I.R. 1924 Bom., 353 (dumbness).

(/) Tirumamagal v. Ramaswami (1863) 1 Mad. H.C., 214; Surti
V. Piarain Das (1890) 12 All, 530.

(m) Baboo Bodhanarain v. Omrao (1870) 13 M.I.A., 519; Koer
Goolab V. Rao Kurun (1871) 14 M I.A., 176, Dwarkanath v. Mahendra-
nath (1870) 9 B L.R , 198, 18 WR, 305; Bra]a Bhukan v. Buchan
(1870) 9 B.LR, 204, Deo Kishen v Budh Prakash (1883) 5 AIL, 509
F.B.; Wooma Pershad v. Girish Chunder (1884) 10 Cal., 639; Ram
Singh V. Mst, Bhani (1916) 38 All., 117, Muthusami Gurukkal v.
Meenammal (1920) 43 Mad, 464, Bapuji v. Dattu (1923) 47 Bom.,
707. In Ran Bijai v Jagatpal Singh (1891) 17 I A , 173, 18 Cal, 111,
an alleged insanity, founded chiefly on incapacity for speech due to
paralysis, was held by the Pnvv Council not to be a ground of
exclusion.

(n) Dig, II, 429, 1 Stra H.L, 156; Ramabai v. Harnabai (1924)
51 LA., 177, 48 Bom., 363; Janardhan v. Gopal Pandurang (1868 ) 5 Bom.
H.C., 145; A nanta y. Ramabai (1876) 1 Bom., 554; Rangayyav.Thanika-
challa (1896) 19 Mad., 74, Mohunt Bhagoban v. Roghunundun (1895)
22 LA., 94, 22 Cal, 843; Runchhod Naran v. Ajoobai (1907) 9 B.L.R .
114, where it was held that the less aggravated form of leprosy is no
ground of exclusion. So also Kayarohana Pathan v. Subbaraya Thevan

?*AR AS. 598-600.] GROUNDS OF DISQUALIFICATION.

727

performing social and religious ceremonies in company with
others would not preclude him from inheritance (o). Other
agonizing and incurable diseases are also spoken of as causing
the same effect, as an example of which atrophy is given (p).

To disinherit a man merely because he is suffering from
-cancer, tuberculosis or diabetes would be to go too far; such
a rule cannot be regarded either as a workable or as an
•enforceable one. In this connection, the distinction between
imperative rules of law and moral or religious precepts
cannot be overlooked (^) .

§ 599. Lameness and the deprivation of the use of any Lameness
limb or organ {nirindriya) must be not only congenital, but
absolute or complete (r). Not, perhaps, necessarily the
absolute want of a limb, but, at all events, a complete
incapacity to make any use of it.

§ 600. Unchastity as a ground of exclusion applies only Unchastity,
to the widow under the Mitakshara law and not to the other
female heirs. But under the Dayabhaga law, it applies to
all the five female heirs, namely, widow, daughter, mother,
father’s mother and father’s father’s mother (s). Unchastity
however is no ground of exclusion in respect of succession
.to stridhana property (^). But unchastity, so far as the
widow, the daughter-in-law and the grand-daughter-in-law
are concerned, whether under the Mitakshara or the
Dayabhaga law, in cases where the succession is governed
by the Hindu Women’s Rights to Property Act, 1937, will
be no longer a ground of disqualification, as it
entitles them to inherit, notwithstanding any rule of Hindu
law or custom (u). For the same reason, they would not

(1915) 38 Mad., 250, Man Singh v. Gaini (1918) 40 All., 77; Karcdi
V. Asutosh (1923) 50 Cal., 604: “Leprosy to he a ground of exclusion
from inheritance must be of the «anious or ulcerous and not of the
anaesthetic type”. Raju v. Ramasami U914) 16 M.L.T., 254.

(o) (1915) 38 Mad, 250, supra,

ip) Dig., II, 425, 434. See Issur Chunder v. Ranee Dossee 2 W.R.,
125. The D.K.S. explains the text of Narada, which refers to a long
and painful disease, as meaning a disease from the period of birth,
D.K.S.. III. § 11.

(g) See ante § 19.

(r) Mit., II, X, 1-4; Vivadachintamani, 242-243; W & B, 343;
Murarji v. Parvatibai (1876) 1 Bom., 177, 185; Venkatasubba Rao v.
Purushottam (1903) 26 Mad., 133, following Put tick Chunder v. Juggut
Mohinee Debee 22 W.R., 348.

(s) Ante §§ 575, 576, 578.

(0 Angammal v. Venkata (1903) 26 Mad., 509; Nagendra v.
Benoy (1903) 30 Cal., 521; Ganga v. Ghasita (1879) 1 All., 46;
Advyapa v. Rudrava (1880) 4 Bom., 104, 122.

(tt) Ante §593.

728

EXCLUSION FROM INHERITANCE. [ CHAP. XV,

Outcastet.

Murder, a dis-
qualification.

be debarred from inheritance by the other disqualification^'
mentioned in this chapter with the exception of the one on
the ground of murder, as the statute must be construed sub-
ject to public policy (v).

§ 601. Outcastes are now relieved by the Caste Dis-
abilities Removal Act (XXI of 1850). The Act gives relief
not only against the forfeiture of rights of persons who are
deprived of caste on account of their renouncing, or being
excluded from the Hindu religion, but also against the for-
feiture of the rights of those who lose caste on other grounds
as well (w). The effect of the Act has been already full>
stated (§43).

While the Act virtually sets aside the provisions of Hindu
law which penalised renunciation of religion or exclusion
from caste, it does not affect any other rule of Hindu law.
Accordingly, where there are circumstances which, independ-
ent of change of religion or deprivation of caste, create a
disability under Hindu law, it is not removed by the Caste
Disabilities Removal Act as it only relieves against forfeiture
due to change of religion or degradation. The incontinence
of a Hindu widow is a bar to her claiming the estate of her
husband (;i;) . It may be of such an aggravated character, as,
for instance, the union of a Brahman woman with a Sudra
involving loss of caste. Act XXI of 1850 while it removes
the effect of degradation does not touch the disability which
IS due to her disqualification based solely on her
unchastity (j).

A murderer is disqualified from succeeding to the
estate of the murdered man, just as much as a murderei
is disqualified from taking as a devisee or legatee under the

(r) Kenchava v. Girimallappa (1924) 51 I. A., 368, 373, 48 Bom.,,
569, 576, “Statutes regulating heirship or descent . . . should be
read as not intende<l to affect paramount questions of public policy or
depart from well-established principles of jurisprudence ”

(w) Subbaraya v. Ramasami (1900) 23 Mad., 171, 174 following
Srimati Matangini Debi v. Jay Kali (1870) 5 BLR, 466, 493 The
view expressed in Nalinaksha v Rajani (1931) 58 Cal., 1392 that the
Act refers only to deprivation of caste by reason of change of religion
and not on account of other degradation appears to be wrong.
Khunni Lai v. Gobind Krishna (1911) 38 I A., 87, 33 AIL,
356 reversing (1907) 29 All., 487; Mitar Sen v. Maqbal Hasan (1930)
57 I.A., 313, A.I.R. 1930 PC., 251; See the Bengal Regulation VII
of 1832, sec. 9.

ix) Ante §§532, 575.

(y) Moniram Kolita v. Ken Kohtani (1880)’ 7 I.A., 115, 116, 5^
Cal., 776, 792, affg. 19 W.R., 367; Matangini v. Jay Kali (1870) 5»
BX.R., 466; Sundan v. Pitambari (1905) 32 Cal., 871, 873-874.

PARAS. 601-603.] DISABIUTY ONLY PERSONAL.

729

will of the murdered person (z). In Kenchava v. Girinud*
lappa, the Privy Council decided that even apart from Hindu
law, principles of justice, equity and good conscience exclude
a murderer from succeeding to the estate of the murdered
person and that it must be regarded as a paramount rule of
public policy. The murderer should be treated as non-existent
and not as one who forms the stock for a fresh line of
descent (a) . The opinion expressed in Vedanayaga v. Ved-
ammal that while the murderer is only disentitled to the
beneficial interest, the succession vests in him so as to pass it
to those who can claim through him (b), was overruled. In
Gangu V. Chandrahhagabai, the wife of a murderer was held
entitled to succeed to the estate of the murdered man, not
because the wife deduced title through her husband, but as
a gotraja sapinda in her own right (c). This decision has
been so explained by the Privy Council and stands unaffected.

S 602. Except in the case of degradation, the disability Disability
is purely personal, and does not extend to the legitimate
issue of the disqualified person (d). The person excluded
however does not possess any interest which he can transmit
to his own heirs (ej. To what extent and in what cases a
disqualified person can make a valid adoption has alieady
been discussed (/).

§ 603. All grounds of disqualification which would Dibabilitica
exclude males apply equally as against female heirs Ig). So

(z) See fur a cube of intestacy. Re, Sigsworth, Bedford v. Bedford
[1935] Ch. 89, approved m Beresford v. Royal Insurance Company, Ltd,
[1937] 2 All. E.R , 243 (insurance and suicide), adirmed in [1938]

2 All. E.R.. 602 H.L

ia) (1924) 51 LA., 368, 374, 48 Bom., 569, 576 affg. (1921) 45
Bom., 768, Vedammal v. Vedanayaga (1908) 31 Mad., 100 (murderer’s
mother excluded). See Brih , XXII, 29, 30.

(6) (1904) 27 Mad., 591.

(r) (1907) 32 Bom., 275. In Mt Sind Kaiir v. Indar Singh (1922)

3 Lah., 103 and Har Bhagwan v. Hukam Singh (1922) 3 Lah., 242,
which were before the decision of the Privy Council in Kenchava v.
Girimallappa the principle of the law of attainder was evidently applied
so as to disqualify the sons of the murderer from inheritance. But the
decision of the Privy Council makes it clear that the murderer should
be treated merely as non-existent and that title, as distinguished from
relationship, cannot be traced through him.

(d) Mit., II, X, 9-10; D. Bh., V, 17-19.

(e) Mt, Bodha Kuer v. Mt, Sohodra Kuer (1931) 11 Pat., 35 (the
widow of a man who was deaf and dumb from his birth was excluded
from tracing title through her husband).

(/) Ante § 142.

(g) Mit., II, X, 8; Bakubai v. Manchhabai (1864) 2 Bom. H.C.
(A.C.J.), 5; Vallabhram v. Bai Hanganga (1867 ) 4 Bom. H.C. (A.C.J.),
135.

730

EXCLUSION FROM INHERITANCE. [CHAP. XV,

Not a
forfeiture.

Lets in next
heir.

Remove^

of disquali-
fication.

too it would seem they apply to succession in respect of
stridhana property (h),

§ 604. Property which has once vested in a person,
either by inheritance or partition, is not divested by a sub-
sequently arising disability (t).

The effect of a disability on the part of a person who
would otherwise have been heir is at once to let in
the next heir. For instance, if a man left an insane son
and a daughter, the latter would take at once (/). So if
he left an insane daughter, and sons by her, the latter only
would succeed (A:). In other words, the effect of the dis-
qualification is, for purposes of succession, exactly the same
as if the disqualified person were then dead or non-existent.
If the incapacitated person has issue then living, or en
ventre sa mere, who would, if the father were actually
dead, be the next heir, such issue will be entitled to
succeed. But he must succeed on his own merits. He will
not be allowed to step into his father’s place. For instance,
if a man dies, leaving a brothei, and an insane brother and
his son, the brother will take the whole estate, because the
nephew cannot inherit while a brother is in existence. So
if a man dies leaving a sister’s son, who is insane, and the
sister’s son himself has a son, the latter cannot in Bengal
inherit, because the sister’s grandson is not an heir (/)

§ 605. If and when the defect which produces exclusion
is subsequently removed, the right to inheritance revives but
not so as to divest the estate already vested in another
person (m). In Deo Kishen v Budh Prakash, the widow of
a man was insane at the time the succession opened to his
estate. His daughter’s son was held to be the heir in default
of a nearer qualified heir. It was also held that although
a person becomes qualified to succeed to property after the

(/i) Banerjee, M & S, 5th edn , 361-362, Charu Chunder v. Nobo
Sunderi (1891) 18 Cal., 327, 330, 333 where the question whether the
rules of exclusion apply to stridhana properly was left open.

(i) Mit., II, X, 6, Deo Kishen v. Budh Prakash (1883) 5 All., 509
(F.B.) ; Kery Kolitany v. Mooneeram (1880) 7 I.A., 115, 5 Cal., 776;
Sanku v. Puttamma (1891) 14 Mad, 289, 294, Abilakh Baghat v.
Bhakhi (1895 ) 22 Cal., 864, Sellam v. Chinnammal (1901) 24 Mad.,
441.

ij) 2 W. MacN., 42.

(A) Bodhnarain v. Omrao (1870) 13 M.I.A., 519.

(/) Per Peacock, C. J, m Kalidas v. Krishan (1869) 2 B.L.R.,
103, 115 F.B.; See, too, Dwarkanath v. Mahendranath (1873) 9 B.L.R.»
198, 203; sub nomine, Dwarkanath v. Denubundoo 18 W.R., 305.

(m) Mit., II, X, 7; V. May., IV, xi, 2.

PARA. 605.]

REMOVAL OF DISABILITY.

731

•disqualification ceases, he cannot resume property from an
heir who has succeeded to it in consequence of his disqualifi-
cation existing at the time the succession opened (n).

As in such cases the Hindu law never allows inheritance
strictly so called to be in abeyance, the rule against divesting
an estate already vested applies both to Dayabhaga inherit-
ance and to obstructed inheritance under the Mitakshara law.
Where in default of a qualified heir the estate has vested in
the next heir, it cannot be divested by the removal of dis-
qualification of the excluded heir who, if he were not
disqualified, would have taken only as an obstructed heir (o).
So too if the incapacitated person has a son subsequently con-
ceived, that son will not inherit, even though he would have
been the next heir if he had been in legal existence at the
time the succession opened (p). But the case is however
different under the Mitakshara law where the disqualified
person is the son of the deceased. Where his disqualification
is congenital, he may have no right by birth though the
Mitakshara makes no such distinction between congenital and
supervening disqualification. Where the disqualification arises
after birth and disentitles him to take his father’s property
or to a share on partition, it is clear that the right by birth
which is already vested in him is not destroyed by the subse-
quent disqualification but lies dormant (q). Placitum 7 of
the Mit., II, X, would undoubtedly apply to a case where the
supervening disqualification is removed, and possibly also to
a case where the congenital disqualification is subsequently
removed. In the former case, but for the disqualification, he
would have taken as an unobstructed heir whether the property
was ancestral property or the father’s self-acquired property.
His right in such a case which was dormant becomes active
and enforceable and if the disqualification ceased, he would
be entitled to divest the person in whom the estate was
vested in the meantime as for an obstructed inheritance. So
too, if a son is born to a disqualified person, whether the
disqualification was congenital or arose subsequent to his
birth, that son would be entitled to divest the estate of any
one who had taken the estate in the meantime. The views ex-

(/i) (1883) 5 All., 509 F.B.

(o) Kahdas v. Knshan (1869) 2 B.L.R., 103 (F.B.). [Dayabhaga
easel; Narasimharazu v. Veerabhadra Razu (1894) 17 Mad., 287, 292;
Krishna v. Sami (1886) 9 Mad., 64 (F.B.), 69-70; Venkateswara Pattar
v. Mankayyammal (1935) 69 M.L.J., 41(), 417.

(p) Ibid,

iq) Muthusami v. Meenammal (1920) 43 Mad., 464, Venkateswara
Pattar v. Mankayammal (1935) 69 M.L.J., 410, 417; Dilraj v. Rikeswar
Ram (1934) 13 Pat., 712, 728.

After-born
son of
disqualified
heir.

732

EXCLUSION FROM INHERITANCE. [CHAP. XV,

Entrance
into religious
order.

pressed by Peacock, CJ., in Kalidas v. Krishan (r), a Daya-
bhaga case, as to the Mitakshara rule were only obiter dicta
and have been dissented from by a Full Bench of the Madras
High Court in Krishna v. Sami, where the distinction between
an obstructed and an unobstructed inheritance is clearly laid
down ( 5 ). But in Bapuji v. Pandurang (t) where a man
died leaving his undivided son born deaf and dumb and his
undivided brother’s son, it was held that the nephew suc-
ceeded to the entire family estate on the death of the uncle
and that a son born to the disqualified son could not divest
the nephew to the extent of his share. In Pawadewa v.
Venkatesh, where a widow succeeded to her husband’s estate
in the presence of a disqualified son, it was held that a son
born subsequently to the latter would not divest the widow’s
estate (u). Both these decisions overlook the well-established
distinction between the lineal succession of the male issue
which IS unobstructed and collateral succession which is
obstructed. Even the congenitally disqualified son’s right
being latent, would come into operation when the disqualifica-
tion ceases, as it does in the case of an after-born son (rl.
The Allahabad, Bombay and Patna High Courts have
recently adopted the view laid down in Muthusami v.
Meenammal iiv).

k 606. One who enters into an order of devotion severs
his connection with the members of his natural family. He
is accordingly excluded from inheritance. Neither he noi

(r) (1869) 2 B.L.R, 103 (F.B.).
is) (1886) 9 Mad, 64 (F.B.).

(0 (1882) 6 Bom, 616 This case followed the Dayabhaga law
as pointed out in [1937] All , 825 F B

(n) (1908) 32 Bom, 455. Neither this case nor the case 111
6 Bom, 616 supra could be distinguished, (as the latter wa*^ in AIR.
1936 Bom, 191 infra), on the ground that as the son’s disqualification
was congenital, he took no right by birth The grandson s right by
birth in the grandfather’s property was in question in both the casev.

( 1 ;) Krishna v Sami (1886 ) 9 Mad, 64 F.B (born deaf and
dumb); Raghunatha v. Brozo Kishore (1876) 3 l.A , 154, 1 Mad. 69;
Muthusami v. Meenammal (1920) 43 Mad, 464, V enkateswara Pattar
V. Mankayyammal (1935) 69 M.L.J., 410, 417. The Legislature has,
in sec. 2 of the Hindu Inheritance (Removal of Disabilities) Act, 1928,
adopted the view that congenital lunacy or idiocy which is subsequently
removed will not be a ground of disqualification.

(tt;) (1920) 43 Mad, 464; Moot Chand v. Chahta Devi [19371
All., 825 F B., overruling Tirbeni v. Muhammad (1906 ) 28 All, 247;
Vithaldas Govindram v. Vadilal Chhagan Lai A.I R. 1936 Bom , 191, 38-
Bom. L.R., 257; Mt. Dilraj v. Rikheswar Ram (1934) 13 Pat., 712. The
decision in Man Singh v. Mst, Gaini (1918) 40 All, 77, where it wa*
held that a disqualified person was not disqualified to manage the joint
family estate cannot be regarded as good law: [1937] All., 825, 832
(F.B.).

PARA. 606.] ENTRANCE INTO RELIGIOUS ORDER.

733

liis natural relatives can succeed to the property held by the
other (re) . The persons who are excluded on this ground
come under three heads, viz., the V anaprcLStha, or hermit;
the Sanyasi or Yati, or ascetic; and the Brahmachari^
or perpetual religious student. In order to bring a

person under these heads, it is necessary to show an
absolute abandonment by him of all secular property, Must be
and a complete and final withdrawal from earthly absolute and
affairs. The mere fact that a person calls himself a Byragi^
or religious mendicant, or indeed that he is such, does not
of itself disentitle him to succeed to property (>). Nor does
any Sudra come under this disqualification, unless by
usage (z). This civil death does not prevent the person
who enters into an order from acquiring and holding private
property which will devolve, not of course upon his natural
relations, but according to special rules of inheritance (a).

(x) Yajn, II, 137; Vasishtha, XVII, 27; Mit., II, x, 3; D. Bh., V, 11;
V. May., IV, xi, 5; Pandit Parma Nand v. Nihal Chand (1938) 65 I.A.,
252, A.I.R., 1938 P.C., 195, 42 C.W.N., 1013.

(y) Teeluck v. Shama 1 W.R., 209.

(z) Dharmapuram Pandora Sannadi v. Virapandiyan (1899) 22
Mad., 302; Kondal Row v. Swamulavaru (1917) 33 M.L.J., 63; Soma’-
sundaram Chettiar v. Vaithilinga Mudaliar (1919) 40 Mad., 846;
Ramdhan v. Dalmir (1909) 14 C.W.N , 191; Bar Chandra Roy v. Atir
Mohmud (1913) 40 Cal., 545; Baldeo Prasad v. Arya Priti Nidhi
<1930) 52 AIL, 789; Krishnaji v. Hanmareddi (1934) 58 Bom., 536.

(a) (1938) 65 I.A., 252, 42 C.W.N., 1013 supra.

Women’s

peculium.

Meaning of
Stridhana.

Recognised in
early Hindu
law.

CHAPTER XVI.

STRIDHANA.

§ 607. The subject of stridhana or woman’s peculium
occupies a large place in the Sanskrit law-books. It will be
discussed in this chapter under four heads: (1) the meaning
and scope of stridhana; (2) its divisions; (3) the powers of
disposition over it and (4) its devolution. It would appear
that woman’s separate property was, from the most ancient
times, known as stridhana and Mr. Kane says that passages
in the Veda refer to it (a ) .

The term ‘stridhana! first occurs amongst the Smritis in the
Dharmasutra of Gautama and literally means woman’s pro-
perty (a^). The Mitakshara and the authorities that follow it
take the term ‘stridhana’ in its etymological sense as including
all kinds of property of which a woman has become the
owner, whatever the extent of her rights over it (6). Jimuta-
vahana restricts the term to that property of the woman
over which she has absolute control even during the life of
her husband (c). The Vyavahara Mayukha, while following
the Mitakshara’s comprehensive signification, makes a dis-
tinction between technical and non-technical stridhana for
purposes of inheritance, designating all those kinds of
stridhana that are enumerated in the Smritis as technical
stridhana (paribhashika) (d). In modern Hindu law, the
term ‘stridhana’ denotes not only the specific kinds of
property enumerated in the Smritis, but also other
species of property acquired or owned by a woman
over which she has either absolute control or control subject
only to her husband’s dominion. And she forms the stock of
descent in respect of such property which accordingly
devolves on her own heirs.

§ 608. A text of Manu states that a wife, a son and a
slave can have no property and that the wealth which thev
earn is acquired for him to whom they belong (e). This did

(a) Kane., 4; one such passage is Rigveda, 1, 109, 2, see Jha,.
H.L.S., II, 526.

(fli) Jolly, T.L.L., 228.

(b) Mit., II, XI, 2-3.

(c) D. Bh., IV, 1 , 18.

(d) V. May., IV, x, 18, 24-27; Mandat v. Bai Rewa (1893) 17
Bom., 758; Dayaldas v. Savitri Bai (1910) 34 Bom., 385.

(e) Manu, VIII, 416. For a discussion of woman’s rights fronu
early times, see §§ 494-495.

PARA. 608.]

RECOGNISED IN EARLY TIMES.

73S

not mean that they could not own property, but as explained
by Manu’s commentators, they could not dispose of their
property independently (/). This view receives support
from Gautama who distinctly admits the right of a woman
to hold separate property and provides for its succession (g) .
Apastamba says that the share of the wife consists of her
ornaments and the wealth which she may have received from
her relations Naturally a woman’s property would

commence at her bridal, and would consist of gifts from the
bridegroom and- his family and from her own family. The
original bride-price payable to the parents appears to have
become transformed into the dowry for the wife. There was
evidently a usage that property upto the limit of two thousand
panas should be given annually to the wife by the father,
mother, husband, brother or kindred (i). This was exclusive
of any immovable property, the gift of which was entirely
optional (y). Besides the gift of affection from her parent’s
or from her husband’s family, a married woman was at
liberty to receive presents from strangers or make earnings
by mechanical arts during coverture, but a restriction on
her power of disposal was imposed upon her lest she became
too independent and neglected her marital duties and the
management of household affairs {k). A text of Manu
which requires a righteous king to punish like thieves, such
relatives as appropriate the property of women during their
lifetime, is quoted in all the books (1), It is therefore quite
clear that from early times, Hindu law recognised to the
full the rights of women to hold separate property {m ) .

(/) Medhatithi, Vol. IV, 434-5; Kiilluka on Manu, VIII, 416;
Bombay ed , 339; Viramit., V, 1, 2, Setlur, II, 440; V. May., IV, x, 7.
Both the Mayukha and the Viramitrodaya explain Manu*s verse as
referring to, in the case of the wife, only to that which is acquired by
mechanical arts and the like.

ig) Gaut., XXVIII, 24-26.

(A) Apas., II, 6, 14, 9.

(i) Katyayana and Vyasa cited m the Smntichandrika, IX, i, 6-9;
V. May., IV, x, 5; Vivadaratnakara, VIII, 6; Viramitrodaya, V, i, 1.
D. Bh., IV, 1 , 10; Jha, H.L.S., II, 540.

(/) Smritichandrika, IX, i, 6-10; Parasara Madhaviya, para. 83,
Setlur, 344; V. May., IV, x, 5.

(A) Muthukaruppa v. Sellathammal (1916) 39 Mad., 298, 299.

(/) Manu, VIII, 29.

(m) Sir Henry Maine m his “Early History of Institutions” says,
“It IS certainly a remarkable fact that the institution seems to have
been developed among the Hindus at a period relatively much earlier
than among the Romans”. But he seems to think that it gradually
deteriorated to an insignificant position (321-324) . This certainly
derives no support from the comprehensive and important position
ascribed from the eleventh century to stridhana by the Mitakshara
and other authorities which follow it.

STRIDHANA.

[chap, xvr,

7,%

Early texts
as to
stndhana.

Their rights of disposition over many and commoner species
of property too were admitted, though over others, restric-
tions were imposed on fairly rational grounds. This is not
surprising when it is remembered that restrictions were
imposed over males also in respect of dispositions of pro-
perty, and especially of immovable property (n) , From the
time of Gautama, the characteristic feature of woman’s pro-
perty ^^as in the matter of succession, the preference
given to the female over the male children — an obviously
equitable rule. In the quaint phrasing of the Mitakshara,
“Woman’s property goes to her daughter because portions
of her abound in her female children and the father’s estate
goes to his sons because portions of him abound in his male
children” (o).

§ 609. The texts relating to stndhana, except in the matter
of succession, arc fairly adequate and clear. The principal
definition is that contained in Manu: “What was given before
the nuptial fire (adhyagm), what was given on the bridal
procession (adhyavahanika) , what was given in token of
love {dattam pritikarmam) and what was received from a
brother, a mother, or a father, are considered as the six-fold
property of a woman” (p). The woids, ''a brother, a motbeT,
or a father” appear to be given by ^^ay of illustration, for
he says in the next verse: “Such property as well as a gift
subsequent {anvadheyam) and what was given to her by
her affectionate husband shall go to her offspring even if
she dies in his lifetime” {q) . Vishnu and Yajnavalkya give
a similar enumeration, but both add to the list the compensa-
tion which is given to a superseded wife (adhivedanika) (r).
The text of Yajnavalkya is: “What was given to a woman
by the father, mother, her husband or her brother, or received
by her at the nuptial fire or presented on her supersession
{adhivedanika) and the like {adi) ^ is denominated woman’s
property. That which is given (to the bride) by her
bandhus, sulka, anvadheyaka, these her kinsmen (bandhavas)
take if she die without issue” (s). Vijnanesvara explains

(ri) (1916) 39 Mad, 298, 303 supra.

(o) Mil, I, HI, 10

(p) Manu, IX, 194.

(q) Manu, IX, 195.

(r) Vishnu, XVII, 18, Yajn , II, 143; Vijnanesvara says that the
superseded wife should receive as much as is bestowed upon the second
wife, Mit , II, XI, 35.

(s) Yajn , II, 143, 144, as explained by Katyayana cited in Mit.,
II, XI, 7. “What is received by a woman after marriage from the
kinsmen of her lord, or from those of her parents, is called a gift
subsequent {anvadheya)"\ Banerjee, M & S, 5th edn., 324.

PARAS. 609-610.] SEVERAL DESCRIPTIONS OF STRIDHANA.

737

that the term ^adV includes ‘‘property which she may have
acquired by inheritance, purchase, partition, seizure, and
finding” (^) and says: “The term ‘woman’s property’ con-
forms in its import with its etymology and is not technical”.
According to him, Manu’s six-fold classification is only
illustrative (m). Obviously he is right, for, Manu, Yajna-
valkya and all the other Smiilis enumerate more than six
kinds of stridhana.

§ 610. The kinds of stridhana enumerated in the Smritis
are: —

(1) What is given before the nuptial fire, adhyagni {v) ;

(2) What a woman receives while she is conducted from
her father’s house to her husband’s dwelling, adhyavaha-
nika (w) ;

(3) What is bestowed in token of love, pritidatta or
bliartrudaya (a;) ;

(4) Pritidatta or affectionate present, as defined by
Katyayana, is: “whatever has been given to a woman through
affection by her molhei -in-law or her father-m-law as also
wealth termed padavandanika, that is, that which is received
by a woman at the time of bowing at the feet of elders” (y) ;

(t) Mit., TI, XI, 2. Tlie Mitakshara says* “All these descriptions
of propel ty are denominated woman’s estate hy Mann and the rest”.
The criticism bv the Juduidl Committee in Dehi Mangal Prasad v.
Mahadeo Prasad (1912) 39 LA., 121, 127, 34 All, 234, that the reference
by Vijnanesvara to Manu is not borne out by that authority as given
in para. 4 is due to Mr. Colehrooke’s erroneous translation which
Dr. Jolly has corrected and explained, TLL, 245. Vijna-
nesvara does not say that his own expansion of ‘erd/’ was denominated
by Manu as stridhana, but that the word in the text of Yajnavalkya
'^parikirtitand ‘denominated’ means ‘by Manu and the lest’ referring only
to the categories in the Jsmritis. Apararka also takes ‘etc.’ to imply
othei kinds of stridhana, 21 M L.J (Jour), 428.
iu) Mit , II, xi, 3-4.

(v) Manu, IX, 194; Yajn , 11, 113, Katyayana says ‘’Whatever is
given to women at the time of their marriage before the nuptial fire,
which IS the witness of nuptials, is denominated hy sages adhyagnika
stridhana**, cited in the Smritichandrika, IX, i, 2, V. May, IV, x, 3;
Dig., II, 585, Banerjee, M & S, 5th edn , 322; Jha, H L S., II, 528.

(w) Manu, IX, 194; Katyayana cited in Mit , II, xi, 5.

ix) Manu, IX, 194; Nar., XIII, 8, V. May., IV, x, 18; D. Bh., IV,
1,7; the husband’s donation of Narada is the same as Manu’s ^pritidatta* ;
Banerjee, M & S, 5th edn., 320-321 The Vyavahara Mayukha uses
the expression 'pritidatta* for husband’s donation, V. May., IV, x, 18.

(y) Katyayana cited in Mit., TI, xi, 5; Smritichandrika, IX, i, 2;
V. May., IV, x, 3; Viramit., V, i, 3, Setlur, II, 440; the Vivadachinta-
mani’s reading is 'lavanyarjita* or acquisition through amiability, p. 257;
Dig., II, 586. Balambhatta identifies Manu’s 'dattam pritikarmani* as
.referring to 'pritidattam* of Katyayana, Mit., Setlur’s edn., p. 844.

49

Kinds of
stridhana in
the Smritis.

738

STRIDHANA.

[chap. XVI^

(5) Gifts made by father, mother or brother {z ) ; (ac-
cording to Manu, these are counted as three kinds of
stridhana) .

(6) Gift subsequent, that is, that which is received froirh
her husband’s family or her father’s family subsequent to>
marriage (anvadheyaka) (a);

(7) Gift on supersession (adhivedanika) . A present made*
to a woman on her husband’s marriage to another wife is
the gift on supersession (6) ;

(8) Gift by bandhus (bandhudatta) , that is, what is
given to the bride by the relations of her mother or of her
father (cj ;

(9) Sulka or the fee which is variously described (i) as
the gratuity for the receipt of which a girl is given in
marriage (d) ; (ii) as being a special present to the bride
to induce her to go cheerfully to the mansion of her lord
(e) ; and (iii) as what is received as the price of household
furniture, conveyance, milch-cattle and ornaments (/).

A text of Devala cited in the Smntichandnka and the
Viramitrodaya says, “Her subsistence ornaments,

fee or sulka, or her gams are the separate property of a
woman” (g).

(z) Manu, IX, 194, Yajn , II, 143.

(а) Manu, IX, 195, Yajn , II, 144, Katyayana cited m Mit , II, xi,
7; Mr. Mandlik’b translation that it is property received from the
family of the bridegroom is not complete The Mitakshara understands
it, as Katyayana explains it, as meaning gifts from the parents as
well as the husband’s family.

(б) Yajn., II, 143, Vishnu, XVII, 18, Mit., II, xi, 34.

(c) Yajn, II, 144, Mit, II, xi, 6.

id) Yajn, II, 144, Mit, II, xi, 6.

(e) Vyasa, Dig, II, 592, D. Bh., IV, in, 21, another explanation of
sulka IS given by the Dayabhaga* ‘What is given to a woman to induce
her husband or others of her family who are artisans to do work’’,
D. Bh., IV, 111 , 20; Viramit , V, i, 3.

(/) Katyayana cited in the Smntichandnka IX, i, 5; Vyavahara
Mayukha, IV, x, 3; Viramit , V, i, 3; Vivadachmtamani, p 258.

(g) Smritichandnka, IX, 2, 15; D. Bh., IV, i, 15. *Labham" or
*gains* signifies what is received by a woman from any person who
makes a gift at the time of propitiating Gauri or some other goddess,
Viramit., V, i, 7, Setlur, p. 443, following Smritichandnka; ^Labham^
is interest received according to V. May., IV, x, 10.

PARAS. 611-612.] DIVISIONS OF STRIDHANA.

73?

§ 611. Katyayana indicates a cross-classification of
stridhana properties, with reference to a woman’s in-
dependent powers of disposal over it, into saudayika and
non-saudayika stridhana (A). “That which is obtained by a
married woman or by a maiden, in the house of her husband
or of her father, from her brother [from her husband] or
from her parents, is termed * saudayika" ” (i) . For the pur-
pose of succession, another cross-division of stridhana is into
yautaka and ayautaka. According to the Viramitrodaya,
whatever is given at the time of marriage to the bride and
the bridegroom sitting upon the same seat is called yautaka
through the derivation, ‘what belongs to the *yutau^ (or the
two united) is ^yautaka\ Ayautaka is that which is not
yautaka (;). In Muthukaruppa v. Sellathammal, it was said,
** Yautaka is that which is given at the nuptial fire. ... It
includes all gifts made during the marriage ceremonies.
Ayautaka is gift made before or after marriage. Saudayika
includes both yautaka and ayautaka not received from
strangers. It is defined to be gifts from affectionate
kindred” (A;). In Bombay, stridhana is divided for purposes
of succession, in accordance with the Mayukha, into pan-
bhashika (technical) and non-paribhashika stridhana, the
former referring to the kinds mentioned in the texts
and the latter to the others. Sulka is treated in all the
schools as a category by itself for purposes of succession.

§ 612. When Vijnanesvara expanded the term *adi^ in
Yajnavalkya’s text as including property acquired by inherit-
ance, purchase, partition, seizure and finding and laid down
that woman’s property must be understood in its etymological
sense, his intention evidently was to systematise the law on
the subject. Following Gautama’s text, he merely pointed
out that the modes of ownership were common to all,

(h) The Vivadachmtamani apparently understands saudayika as a
cross-classification and says that it is the name by which the different
kinds of stridhana are known, p. 259; Jha , H.L.S., II, 529-531;
Apararka, 21 M.LJ. (Jour.), 428.

(i) Katyayana cited in Mit., II, xi, 5; Smritichandrika, IX, ii, 4-5;
V. May., IV, x, 8; Viramit., V, i, 3, a text of Vyasa cited in the
Smritichandrika, IX, ii, 6 is to the same effect. The Dayabhaga reads
‘from her husband’ instead of ‘from her brother,’ D. Bh , IV, i, 21.
The Viramitrodaya also notices this different reading, Viramit., V, i,
3, Setlur, p. 440; Dig., II, 594.

(;) Viramit., V, 2, 2, Setlur, p. 446; V. May., IV, x, 17; Smriti-
chandrika, IX, iii, 13; Vivadachmtamani 267-268, D. Bh., IV, ii, 13-15.
The word *Yautaka’ occurs in Manu, IX, 214, meaning ‘separate pro-
perty’ according to Medhatithi and Kulluka. See also Dr. Jolly,
T.L.L., 213.

(k) (1916) 39 Mad., 298, 300; Venkareddi v. Hanmant (1933) 57

Bom., 85.

Saudayika
and non-
saudayika.

Yautaka and
ayautaka.

The Mitak-
shara scheme.

740

STRIDHANA.

[chap. XVI,

Property
inherited
from malet

irrespective of sex. But as Dr. Jolly points out, he did not
lay down that all the property which a woman holds as stri-
dhana is to be at her absolute disposal (A:^). Vijnanesvara
expressly refers to property regularly inherited by a maiden as
stridhana in Mit , II, xi, 30 (/). It would appear however that
he did not intend by his definition to include in stridhana the
property inherited by a woman as heir to her husband or to her
son. The very rules of stridhana succession which he lays down
postulate as a condition the legal possibility of the acquirer’s
male issue or her husband succeeding to her property on her
death. For, in the absence of the daughter and the
daughtei’s children, her son and son’s son are to
take It and in their default, her husband. But
obviously there can be no conceivable possibility of her
male issue or her husband taking on her death the property
which a woman inherits on her husband’s death only in
default of male issue {m) Similarly the son’s property
which a w^oman inherits as mother, in default of the daughter
or the daughter’s son, could not have been regarded as
stridhana. When Vijnanesvara leferied to inheritance and
partition, he referred to those modes of acquisition, not as
applicable in all cases, but only where they were not other-
wise provided for and were consistent with his scheme of
stridhana succession. He evidently intended to include as
stridhana, propeity which a daughter acquiied from her
father or mother and the property inherited by a daughter’s
daughter from hei grandmother. And on this matter, Nild-
kantha understood the Mitakshara aright. But whatever the
correct intcip relation of the Mitakshara may be, his view that
property inherited by a woman or allotted to a woman for
her share will, in some cases, be stridhana has again and
again been rejected

^ 613. It IS now settled beyond doubt as well under the
Mitakshara as under the Dayabhaga law. that property
inherited by a woman from a male is not her absolute pro-
perty and passes on her death not to her stridhana heirs, but
to the heirs of the male from whom she inherited it (n). It

{k^) T.L L., p. 251, but see Viv Chint 263, Jha, HLS, II, 530.
(/) But see Janakisetty v Miriyala (1909) 32 Mad , 521 dissenting
from Venkatarama v Bhujanga (1896) 19 Mad, 107, which explained
Narasayya v. V enkayya (1892) 2 M.L J , 149, Virasangappa v. Rudrappa
(1896) 19 Mad. 110
{m) Mit, II. XI, 9, 25.

(n) Bachirajii v. Venkatapadu (1865) 2 M.H.C , 402, Kutti

Ammal v Radaknstna (1875) 8 M H.C , 88; Phukar Singh v. Ranjit
Singh (1878) 1 All, 661, Jullessur Kooer v Vggur (1883) 9 Cal.,
725; Thakor Deyhee v. Rai Baluk Ram (1866) 11 M.I.A., 139;

PARA. 613.] INHERITED PROPERTY NOT STRIDHANA.

741

is equally well settled that the property which a woman has
taken by inheritance from a female is not stridhana for the
purpose of inheritance; she does not take it for an absolute
and alienable estate, but for a qualified estate with reverter
after her death to the heirs of the female who was the last
full owner (o). The case of a maiden daughter succeeding

Bhugwandeen v. Myna Baee (1867) 11 M.LA., 487; Chotay Lall v.
Chunnoo Lall (1878) 6 T.A., 15, 4 Cal, 744; Muttu Vaduganadha
Tevar v. Dorasinga Tevar (1881) 8 LA, 99, 3 Mad, 290; Venkayamnia
V. V enkataramanayamma (1902) 29 LA, 156, 25 Mad., 678; Sheo
Shankar v. Debt Sahai ( 1%3 ) 30 LA., 202, 25 All , 468. By special
custom, a Hindu widow might be entitled to her husband’s property
absolutely. Krishnabai v. Secretary of State (1920) 42 All., 555;
Hukum Chand v. Sital Prasad (1928) 50 All., 232; Ayisvaryanandaji
V. SivajL (1926) 49 Mad., 116, 152, 153. As to the effect of the new
Act in all such cases, see § 591.

(o) Sheo Pertab v. Allahabad Bank (1903) 30 LA., 209, 25 All.,
476; (1903) 30 1 A , 202, 25 All, 468 supra; Sham Bihanlal v. Ram
Kah (1923) 45 All, 715, Ram Kali v. Gopal Dei (1926) 48 All., 648;
Hukum Chand v. Sital Prasad (1928) 50 AIL, 232; Sengamalathammal
V. Velayuda (1863) 3 M.II.C , 314; Subramania v. Arunachalam (1905)
28 Mad., 1, 9-12 (F B.) ; Raghavalu v. Kamsalya A l.R. 1937 Mad.,
607 (co-wife) ; Virasangappa v. Rudrappa (1895) 19 Mad., 110, 118;
Raju V. Ammam (1909) 29 Mad., 358; (1926) 49 Mad., 116 supra;
Hun Doyal Singh v. Grish Chundra (1890) 17 Cal., 911;

Jogendra v. Pham Bhushan (1916) 43 Cal., 64; Mohendia

Narayan v. Dakshina Ranjan AIR. 1936 Cal, 34, 61 CLJ., 537;
Sisir Kumiid Saha v Jogneswar (1938) 42 C W.N , 359. The actual
decision (1903) 30 LA., 202 supra, was that the property which a
woman has taken by inheritance from a female is not her stridhana
ill such a sense that on her death it passes to her stridhana heirs in
the female line to (he exclusion of males The headnote in that
decision is in accordance with the concluding paragraph of the judg-
ment. In that case, Jagarnath, the daughter succeeded to the stmlhana
of Jadunath and one of the questions was wh<*lher the succession on
the death of Jagarnath devolved on her sons or on her daughters, in
other words, whether it passed to the daughter’s son or the daughter's
daughter. The decision of the Judicial Committee was discussed by
the Madras High Court in Subramania v. Arunathellam (1905) 28
Mad., 1, 9, and undei stood altogether diffeiently. The explanation of
the difficulty as given in Mr Mayne’s own words who argued as
counsel for the successful appellant was that the line of female des-
cent 'Stated in the early books only applied to the special sort of
stridhana described by them. That, with the exception of the Mitak-
shara and the commentaries which avowedly followed it, the wi iters
who gave only the special female line of descent mentioned no other
sort of stridhana except the earliest sort (Vivada. Chit., 256-269;
Madhav., 40) , that the works, such as the Dayabhaga, the Daya Krama
Sangraha, the Smriti Chandrika, and the Mayukha, which enumerated
various sorts of woman's property, assigned the special line to the
special species, and gave different lines to the other sorts; (D. Bh.,
ch. IV, sect. 2, D.K.S., II, 3, 4, Sm. Ch., IX, 3; V. May., IV, 10).
Admittedly no definite rule could be derived from these works, but
they showed a general tendency in such cases to admit male heirs,
either along with, or in preference to, females. The only cases which
had been decided upon this subject came from Bombay, and in these.
West, J., and Telang, J , while differing upon the rule to be laid
down, had agreed in each laying down a rule which preferred
males to females. Vijiarangamv Lakshuman, {1S7 1 ) 8 Bom H C (O C J.),
244; Bai N armada s.Bhagwantrai (1888) 12 Bom., 505; Manilal Rewadat

and&oms
woman nor
stridhana.

742

STRIDHANA.

[chap. XVI,

Bombay.

to the stridhana property of her mother is no exception to
this rule (p).

§ 614. In Bombay, however, property inherited from a
male by a woman other than the widow (^), mother (r),
paternal grandmother ( 5 ), or the widow of a gotraja
sapinda (^), is her stridhana. Thus a daughter (i^),
sister (v), niece {w) ^ grandniece (a;), and daughters of
sagotra-sapindas take the property inherited by them from
males absolutely. So also property inherited by a female
from a female is stridhana in Bombay. In Gandhi Maganlal
V. Bai Jadab, the majority of a Full Bench held that the
general rule as to females inheriting the property in the
Bombay Presidency is that they take it absolutely, and the
limited estate is an exception applicable to cases of females

V. Bai Rewa (1893) 17 Bom , 758, all of which were cited in the judgment
of the Privy Council with apparent approval. It may be presumed that
this argument was accepted by their Lordships, but it is to be regretted
that neitlier the difficulty nor its solution was noticed in the judgment.
In the case of Subramamam v, Amnachelam (1905) 28 Mad, 1, 9,
the Court did not understand the line which had been taken in thf
argument before the Privy Council, nor indeed could they have under-
stood it, ds It was not noticed in the judgment, and could not be
discovered from the report.

(p) Janakibetty v. Minyala (1909) 32 Mad , 521 dissenting from
V enkatararna v Bhujanga (1896) 19 Mad , 107.

iq) Bhaskar v. Mahadeo (1869) 6 Bom. H C (OCJ.), 1.

(r) Vinayak v Lakshmibai (1861) 1 Bom HC, 117, 122;

Narsappa v Sakharam (1869) 6 Bom. II C. (ACJ.), 215; Vrijbku-
kandas v. Bai Farvati (1908) 32 Bom, 26

( 5 ) Dhondi V. Radhabai (1912) 36 Bom, 546.

it) Lulloobhoy v Cassibai (1881) 7 I A, 212, 5 Bom, 110;
Gadadhar v. Chandrabaga Bai ( 1892 ) 17 Bom , 690, F.B , Bharman-
gavda V. Rudrapagauda (1880) 4 Bom, 181, Madhavram v. Dave
(1897) 21 Bom., 739, Narayan v IFaman (1922) 46 Bom, 17.

(u) Balivant Rao v. Baji Rao (1920) 47 I A, 213, 48 Cal, 30;
Pranjivandas v Devkuvarbai (1861) 1 Bom HC, 130, Navalram v.
Nandkishore (1861) 1 B H.C., 209, Vijiarangam v. Lakshman (1871)
8 Bom. H C., 244, Hanbhat v. Damodarbhat (1879) 3 Bom., 171;
Babaji v. Balaji (1881) 5 Bom, 660, Bulakhidas v. Keshavlal (1882)
6 Bom., 85, Bhagirthi Bai v. Kahjiujirav (1887) 11 Bom, 285 F.B.;
Janakibai v Sandra (1890) 14 Bom, 612, Gidappa v Tayawa (1907)
31 Bom.. 453, Vithappaw Savitn (1910) 34 Bom, 510; Kisan v. Bapu
A I.R. 1925 Bom, 424, 27 Bom. L.R., 670, Jawahir v. Jaran Lai (1924)
46 All, 192.

(v) Vinayak v Lakshmibai (1861) 1 Bom HC, 117, affirmed in
(1864) 9 M.I.A, 516, 520; Bhaskar Trimbak v. Mahadeo (1869) 6
Bom H C. (O.C.J.) 1; Rindabai v. Anacharya (1891) 15 Bom., 206.

{w) Madhavram v Dave (1897) 21 Bom, 739, 744.

(a;) Tuljaram v. Mathuradas (1881) 5 Bom., 662.

PARAS. 614-615-a.] woman's share not stridhana.

743

entering the family by marriage and inheriting from a male
-and not from a female (§ 636) (y).

§ 615. In Debt Mangal Prasad v. Mdhadeo Prosody it was
Tield by the Judicial Committee that immovable property
obtained by a Hindu woman on partition of the joint family
property is not her stridhana in such sense that on her death
it passes to her stridhana heirs, but reverts on her death to
the next heirs of her husband ( 2 ).

§ 61 5- A. The actual point decided in the above case was
that there was no substantial difference in principle between
a woman’s property acquired by inheritance and that acquired
by partition. It has however been suggested that the decision
of the Privy Council limits stridhana to the kinds
enumerated in the Smriti texts (o). This does not appear to
be correct. On the other hand, their Lordships thought that
the word ^ad€ would include property acquired in any other
manner ejusdem generis with the modes mentioned by Yajna-
valkya. It is difficult to see any reason why the enumeration
mentioned in the Smritis should be taken as exhaustive and
not as illustrative only which is the uniform opinion of all
the Mitakshara authorities. Rules of Hindu law are not so
inelastic as to be incapable of application to any acquisitions
which were not known when the Smriti rules were first
formulated (6). The Smriti texts are in terms not restrictive
and the very fact that one Smriti adds to the list given in
another shows that the subject of stridhana was in a stage

(>) (1900) 24 Bom., 192 (F.B.) (grandmother inheriting grand-
daughter’s stridhana takes absolutely) ; Kesserbai v Hunsraj (1906)
33 I A , 176, 30 Bom., 431, 452; Narayan v. Waman (1922) 46 Bom.,
17, Parshotham v. Keshavlal (1932) 56 Bom., 164. The doctrine that
property which has been inherited by a woman should revert on her
death to the heirs of the last male owner is not to be extended to the
devolution of stridhana, Manilal v. Bai Rewa (1892) 17 Bom., 758;
Bhau V. Raghunath (1906) 30 Bom., 229, 236; Fakir gauda v. Dyamava
(1933) 57 Bom., 488, 495 (non- technical watan property).

(z) (1912) 39 I.A., 121, 34 All., 234; Hemangim v. Kedarnath
(1889) 16 LA, 115, 16 Cal., 758; Sorolah v. Bhoobun (1888) 15 Cal.,
292; Hndoy v. Behan Lai (1906) 11 C.W.N., 239; Shashi Bhusan v.
Han Narain (1921) 48 Cal., 1059, 1065; Bhugwandeen v. Myrm Baee
(1876) 11 M.T.A., 487, 514 (where the point was left open) ; Knshna
Lai V. Nandeshwar (1919) 4 Pat. L.J., 38 (share allotted to grandmother
not stridhana in the Mithila school) ; Munni Lai v. Phula (1928) .50
All., 22; Bhagwantrao v. Punjaram A.T.R. 1938 Nag., 1. The decisions
to the contrary in Chhidu v. Nawbat (1902) 24 All , 67 and in Sri
Pal Rai v. Surajbali, ibid , 82, are in effect overruled. Where however
the deed of partition in terms confers an absolute estate upon a woman,
■she takes it as her stridhana, Sahab Rai v. Shafiq Ahmad (1927) 31
C.W.N., 972 P.C.; Bolye Chund v. Khetturpaul (1873) 11 B.L.R., 459.

(а) Muthukaruppa v. Sellathammal (1916) 39 Mad., 298, 299.

(б) Ram Gopal v. Narain (1906) 33 Cal., 315, 319.

Share allotted
on partition
not stridhana.

STRIDHANA.

[chap. XVI,

744

of development. None of the Smriti texts can be held to
cover modern conditions of life or to rule out as stridhana,
acquisitions which a woman might make for herself and
over which she would have full powers of disposition. A
woman may choose to marry late or not at all. She may
be a teacher, an author or a gieat singer, a medical practi-
tioner or a lawyer, a minister oi a public seivant. She can
carry on a trade or business and earn wealth in a variety of
ways. A text of Katyayana says: “Wealth acquired by
mechanical aits or received through affection from any but
the kindred is subject to her husband’s dominion. The rest
is stiidhana*'. The Viramitrodaya explains it as meaning
that the text not a denial of its being a woman's property
but that it cannot be alienated b) her without the consent
of her husband though it belongs to her (c). The Mayukha
indeed treats piopeily acquired h\ mechanical arts, bv
spinning and the like, as non-techmcal sliidhana (c/).

All other S f>lh With the exception of piopcitv mheiited by a

woman oi allotted to her at a partition. Vijnanesvara’s \iew
as to the othei modes of acquisition has been accepted b) the'
Courts. Ac < oi dinglv . —

I All savings made by a woman with hei stridhana
and all purc*hases made with it are of course stridhana! e) -
In Sri Ratn \ Jagdamha. a Hindu widow in possession
of her husband's estate acquiied property through
the exeicise of a light of pre-emption which she had ini
that charactei She however paid the pre-emption money,
not by raising it on the security of hei husband's estate
or out of its income, but by boi rowing it on the security
of the estate pui chased It was held that the right of pie-
emption though incidental to hei husband’s estate, did not
prevent the acquisition from being stridhana!/).

(c) Viramit, V, i, 2, Sellur, p 439, Smriti Ch , JX, 1, 16, V May,
IV, X, 7, D Bh , I\, I, 19, Dig, IT, 589, Banerjee M & S, 5th eci ,
344; Jha, HLS, II, 544, Saleamma \ LaUhnian (1898) 21 Mad, 100*

id) V. May . IV, x, 26

(e) Luchmun v KalU Churn (1873) 19 W R , 292 (PC), Venkata
Rama Venkatasurya (1880) 2 Mad, 333 (P(i), affirmg (1877) 1
Mad , 281. See Hurst v. Mussoorie Bank (1878) 1 All., 762

(/) (1921) 43 AIL, 374, F.B.; Tadiboyina v. Kattamma (1915) 17
M.L.T., 363 (purchase of property by mortgaging property purchased) ►

PARA. 616.]

CHARACTER OF ACQUISITIONS.

745

II. So also money or property given to a woman
absolutely in lieu of maintenance, and purchases made with
such money or property are both stridhana (g).

III. Of course the income of her husband’s estate is
absolutely at the disposal of the widow and would be her
stridhana. Investments or purchases made with it for her own
benefit are her stridhana devolving as such on her own heirs
and she is entitled to dispose of them by gift inter vivos or
by will (A).

IV. So also gifts or grants to her by strangers, whether
made during coverture or when she is a widow, will be her
stridhana (i).

V. A wife’s earnings and property acquired by her own
exertion are equally stridhana, for instance, properties
acquired with the profits of a trade (/).

VI. Property obtained by a woman under a compromise
or settlement of any claim which she makes is her stridhana
where the property is granted to her absolutely (A).

(g) Subramaman v. Arunachelam (1905) 28 Mad., 1, 7-8; Nellai
Kunmru v. Marakathammal (1876) 1 Mad., 166; Manilal v. Bai Rewa
(1893) 17 Bom, 758; Veeraraghava v. Kota Reddi (1916) 31 M.L.J.,
465. Arrears of maintenance are also stridhana, Court of Wards v.
Mohessur 16 W.R., 76. Unrealised rents and piofits of a woman are
her stridhana, Mohinee Mohun v. Rash Biharee Ghosts 1 1937 J 2 Cal., 97.

ih) Balasubrahmanya v. Subbiah (1938) 65 I A., 95, 104, 42
C.W N , 419 alffs. (1935) 69 M L.J , 632, Sowdaminee Dossee v. The
Administrator -General (1893) 20 lA, 12, 20 Cal., 433, V enkatadn
Appa Row V. Parthasarathy Appa Row (1925) 52 l.A , 214, 48 Mad.,
312, 321, 324 (income of an estate held in court pending litigation as
to title), Kadasanath v. Vadivanni (1935 ) 58 Mad, 488, Aiswary-
anandji v. Sivaji (1926) 49 Mad, 116, 151, Bhugbutti v Bholanath
(1875) 1 Cal, 104 P.C., [1937J 2 Cal, 97 supra. Ram Das v. Ram
Seuak AIR. 1935 Oudh, 362. §§640, 641.

(i) Salemma v. LuUhmana (1898) 21 Mad, 100 (enfranchised
service mam in favour of married woman during coverture) ; see also
Venkata Jagannadha v Virabadrayya (1921) 48 I A., 244, 44 Mad.,
643; Palaniyandi v. Velayudha (1929) 52 Mad., 6, Bnj Indar v. Janki
Koer (1877) 5 I A, 1 (property acquired by a widow under a sannad
from Government) , Bai Narmada v. Bhagwantrai (1888) 12 Bom., 505.

(y) Muthu Ramaknshna v. Marimuthu (1915) 38 Mad., 1036;
Mitrnma v. Krishna A I.R. 1933 Rang., 347.

{k) Nathu Lai v. Babu Ram (1936 ) 63 I A., 155, 40 C.W N., 481;
Soudaminee v. Administrator-General (1893) 20 I.A , 12, 20 Cal., 433,
438-9; Sambaswa v. Venkatesvara (1908 ) 31 Mad., 179; Vatsalabai v.
Vasudev A.I.R. 1932 Bom., 83; Parshottam v. Keshavlal (1932) 56
Bom., 164; Rai Rajeshwar v. Harikishen (1922) 8 Luck., 538, A.I.R.
1933 Oudh, 170. It is otherwise where she claims and obtains it only
as her husband’s estate* Rabutty Dossee v. Sibchundar (1854) 6
M.I.A., 1; Ganpat Rao v. Ram Chandar (1889) 11 All., 296. §642.

746

STRIDHANA.

[chap. XVI,

Her power of
dispositioD.

Properly over
which she ha''
absolute
controL

VII. When a Hindu woman takes possession of property
adversely to the true owner, she may either prescribe for a
Hindu woman’s estate or for an absolute estate. In the
latter case it will be her stridhana property (/). But where
the circumstances are such as to show that she claimed as
heir to a male or a female and consequently for the limited
estate of a Hindu woman, the property so acquired will
become part of that estate (w) .

^ 617. The Mitakshara, in treating of woman’s property,
includes under that term all kinds of stridhana lawfully
obtained by a woman, in its most general sense, and lays
down no rules whatever as to her power of disposal over
them (n). The question is fully examined in the Smriti-
chandrika, and in the Viramitrodaya, where distinctions aie
drawn as to a woman’s power of alienating the different kinds
of stridhana. Jimutavahana, however limits the term
stridhana to that property “which she has power to give,
sell, or use independently of her husband’s control” (ol.
But it is evident that a woman may have absolute power
over her property, as regards all other persons but her
husband, and yet be fettered in her disposal of it by him.
A woman’s stridhana or separate property therefore falls
under two heads: 1st, property over which she has absolute
control; and 2nd, property as to which her control is limited
by her husband, but by him only.

§ 618. First: — The absolute dominion of a woman over
her saudayika property was admitted from the earliest times.
Katyayana declares: “The independence of women who have

(/) Sham Koer v Dah Koer (1902) 29 I A , 132, 29 Cdl , 664;
Lacchan Kunwar Manorath Nath (1895) 22 I A, 25, 22 Cal, 445;
Mahabir Prasad v Adhikari (1896) 23 Cal, 942, PC , Mohim Chunder
V. Kashi Kant (1897) 2 CWN, 161, 162, Kanhm Ram v Amn
(1910) 32 All, 1^9,1) man Shankar v Mt. Aisha (1923) 45 All, 729;
Kali Charan v. Plan (1924) 46 All, 769; Bansidhar v Dulhatia (1925)
47 All., 505, Rikhdeo v Sukdeo (1927) 49 All., 713, Suraj Balli v.
Tilakdhari (1928) 7 Pat, 163, Varada Pillai v. Jeevarathnammal
(1920) 46 lA, 285, 43 Mad, 244, Satgur Prasad v Kishore Lai
(1919) 46 I A , 197, 42 All, 152, Mt, Maluha v. Pateshar (1926) 1
Luck, 273, A.I R 1926 Oudh, 371; Mt Huhraji v. Chandrabali (1931)
6 Luck, 519, AIR. 1931 Oudh, 89 (2)

(m) Lajwanti v. Safa Chand (1924) 51 I.A., 171, 5 Lah., 192;
Vengamma v. Chelamayya (1913) 36 Mad, 484, Dhurjati v. Ram
Bharos (1930) 52 All, 222; Parbati v. Ram Prasad (1932) 7 Luck.,
320, A.IR. 1933 Oudh, 92.

(n) Mil., II, xi, 2, 3.

(o) D. Bh., IV, i, 18, 19; DK.S., II, ix, 24; Raghunandana, ix, 1.

PARA. 618.] DISPOSING POWER OVER SAUDAYIKA.

747

received the saudayika wealth, is desirable (in regard to it),
for it was given (by their kindred) for their maintenance
out of affection. The power of women over saudayika at
all times is celebrated both in respect of gift and sale, accord-
ing to their pleasure, even in (the case of) immovables” (p).
The Smritichandrika would confine saudayika to yautaka or
the like, received by a woman from her own parents or
persons connected with them, in the house of either her
father or her husband, from the time of her betrothment
to the completion of the ceremony to be performed on the
occasion of her entering her lord’s house {q) • But this view
has not been followed (r). The texts of Katyayana and
Vyasa have been explained by other commentators as
including gifts received by her from her husband, and from
others after her marriage ( 5 ). The decisions of courts take
the same view. Provided the gift is made by her husband
or by her parents, or by relatives either of her husband or
of parents, it is immaterial whether it is made before marriage,
at marriage, or after marriage; it is equally her saudayika (^).
In other words, saudayika means all gifts and bequests
from relations, but not gifts and bequests from strangers.
Saudayika of all sorts are absolutely at a woman’s own
disposal. She may spend, sell, devise, or give it away at her

(p) Katyayana cited in Vyavahara Mayiikha, IV, x, 8 (Mandlik’s
tran«4, p. 94) ; Smritichandrika, IX, 11 , 3, Viramitrodava, V, i, 3, p. 440;
D. Bh , IV, j, 21. Vyasa quoted in the Smritichandrika (IX, ii, 1-2)
says, ’‘What has been given to a woman by her husband, she may
consume as she pleases’\

(q) Smritichandrika, IX, 11 , 7.

(r) Muthukaruppa v. Sellathammal (1916) 39 Mad., 298.

(s) Viramit., V, 1 , 3; Madhaviya, §83, Setlur, I, 344; D. Bh., IV,
i, 21.

(0 Doorga Mt Tejoo (1866) 5 W.R., Mis., 53; Gangadaraiya
▼ Parameswaramma (1869) 5 Mad HC, 111; Jeewiin w, Mt, Sana 1
N.-W P , 66; Radha v Biseshur 6 N -W P.,279; Hurrymohun v. Shonatum
(1876) 1 Cal, 275; Bhau \ Raghunath (1906) 30 Bom, 229; Muthu
Karuppa Pillai v Sellathammal (1916 ) 39 Mad , 298 ; Judoonath v. Bussunt
Coomar (1873) 11 B.L.R., 286, 296, 19 W.R., 264 (bequest from father) ;
Damodar v. Purmanandas (1883) 7 Bom., 155 (bequest from husband) ;
Basanta Kumari v. Kamikshya (1906) 32 I.A., 181, 33 Cal., 23 (bequest
from brother) ; Atul v. Sanyasi (1905) 32 Cal., 105 (bequest from son) ;
Venkareddi v. Hanmantgauda (1933) 57 Bom., 85 (bequest from
maternal grandfather); Emperor v. Sat Narain (1930) 53 AIL, 437;
Mt, Janku v. Zeboo A.I.R. 1926 Nag., 350.

748

STRIDHANA.

[chap. XVI,

own pleasure («). The same rule applies to land which a
woman has purchased by means of such saudayika (v)*
Her husband can neither control her in her dealings
with it, nor use it himself. But he may take it
in case of extreme distress, as in a famine, or for
some indispensable duty, or during illness, or while a creditor
keeps him in piison. Even then he would appear to be
undei at least a moral obligation to restore the value of
the property when able to do so What he has taken without
necessitv he is bound to repay with interest iw) , This right
to take the wife’s piopertv i& purely a personal one in the
husband. If he does not choose to avail himself of it, his
creditors cannot (a). The word ‘take’ in the text of Yajna-
\alk\a means ‘taking and using’. Hence if the husband
taking his wife's property in the exceptional circumstances
mentioned in the texts does not actually use it, the wife still
remains its owner and the husband’s creditors have no claim
against the properly (y).

A woman’s power of disposal, independent of her
husband’s control, is not confined to saudayika but
extends to other pioperlies as well. Devala says.

(«) D Bh, 1\, 1 21-2^, DKS. II, 2, §§26, 31, 32, Raghunandana,
IX, 3-5, V Md\ , l\ , 10. §§ 8, 9, Sninlirhandnka, IX, 2, §§1-12;
jAi(hmun V Koli Churn (1871) 19 W R , 292, kullamnial v. kuppu
1 Mad HC, 85, 2 MacN , 215, U uluhhram v Hijlee 2 Bor, 440
l'181J, Damodur \ Paratnanandas (1883) 7 Bom, 155, Munia \.
Pnran (1883)5 All , 310, V enkata Rurna v I enknta Swiyn (1880) 2
Mad , 333 (P (. ), Atiil krnhna v banyau (Juirn (1905 I 32 Cal , 1051;
Basanta kumari v kaniikshya (1906) 32 J A , 181, 33 (.al , 23, Shanz
Shivendar v Janki Koer (1909) 36 1 A, 1, 36 Gal, 311, Mutha
karuppa Pilhii \ Sellathummal (1916) 39 Mad, 298, (1933) 57 Bom,
85 supra

(r) (1880) 2 Ma<l., 333 P (’ , Supra wliore a marnod woman
with stridhana contracts, she will be assumed to have intended
to satisfy her liability out of her separate propel ty, Govindji \
Lakmidas (1880) 4 Bom. 318, JSarotam v Nanka (1882) 6 Bom, 473,
and it makes no difference that her husband has contracted jointly
with her. If she is unmarried at the time of her contract, she will
lie liable personally, and not merely to the extent of her stridhanOy
for payment of hei debt, even though she marries before it is enforced,
Nahalchand v Bat Shiva (1882) 6 Bom , 470

itv) Mitakshara, II, 11, §§31, 32, Smritichandrika, IX, 2, §§13-
22, Madhaviya, §51, V May, IV, 10, §10, D Bh , IV, 1, §24;
DKS, II, 2, §33. Yajnavalkya (II, 147) says “A husband is not
liable, unless he be willing, to make good the property of his wife
taken by him in a famine, or for the performance of religious duties,
or during illness, or while under restraint ”

(r) Viramitrodaya, Setlur’s ed , II, 442, 1 Stra HL, 27, 2 Stra.
HL, 23, Tukaram v Gunaji (1871) 8 Bom H C. (ACJ), 129;
Radha v Biseshur 6 N -W.P 279

(y) Nammalwar v Tayarammal (1927) 50 Mad., 941.

PARAS. 618-619.] DISPOSING POWER OVER OTHER STRIDHANA.

749

“A woman’s maintenance ornaments, perquisites

{sulka)^ gains [labha)^ are her stridhana. She her-
self has the exclusive right to enjoy it. Her husband has
no right to use it except in distress. In case of consumption
or disbursement without cause, he must refund it to the wife
with interest” (z). This text gives no countenance to the
view that a woman’s powers of alienation during coverture
are confined to saudayika. For, her exclusive right over
3ulka is admitted. ‘Gain’ in Devala’s text, according to the
Vyavahara Mayukha, means interest or profit (a). The
Smritichandrika and the Viramitrodaya include in it what is
received from any person who makes presents for the purpose
of pleasing Gauri or other Goddess (6). The term ‘labha’
would include the earnings of a woman in a profession or
trade or other employment. It would seem therefore that the
property which is mentioned by Devala as labha, is not con-
fined to gifts from relations only, and such property therefore
as well as sulka, must stand on the same footing as saudayika.
The view of Jimutavahana that a woman has the sole power
of disposal as regards all kinds of stridhana, except the two
species discussed in the next paragraph, is decisive on the
question (6^).

§ 619. SEC()NDi,Y: — Katyayaiid makes two exceptions:
“Wealth which is earned by mechanical arts, or which is
received through affection ( pritya) from any other but her
kindred, is subject to her husband’s dominion. The rest is
pronounced to be her stridhana” (c). Jimutavahana explains
‘from any other’ as meaning “other than the family of her
father, mother, or her husband and that her husband has a
right to take, even though no distress exists, property whic*h
is received through affection from any other but her kindred
and that which is earned by mechanical arts. Even in those
cases, the wealth is hers, though it is not her
stridhana because she has no independent power over it.
But, in other descriptions of properly excepting these two,
the woman has the sole power of gift, sale or other aliena-

(z) Smriti Chandrika, IX, ii, 15; V. May., IV, x, 10 (Mandlik
tians., p. 94), Viramit , V, i, 7, Vivada Ratnakara, VIII, 10, D Bh.,
IV, 1. 15.

(а) V. May., IV, x, 10.

(б) Smriti Chandnka, TX, ii, 15; Viramit, V, i, 7, p. 443.

(51) D. Bh., IV, 1 , 21; Bnj Indar v. Janki Koer (1877) 5 I.A., 1;
Subramama v. Arunachalam (1905) 28 Mad., 1, F.B

(c) D. Bh., IV, i, 19; II Dig., 589.

Property
subject to
husband’s
control.

750

STRIDHANA.

[chap. XVI,

tion” (d). According to the Smritichandrika, “A woman has^
not full dominion over other sorts of property than saudayika
and husband’s donation except immovable although they are
stridhana” (e). The Vyavaha Mayukha suggests that the wife
has no absolute dominion over the compensation received
by her on her supersession (adhivedanika) (/). The
statement in Manu that women should never make any
disbursement even out of their own property without the
permission of their husbands (g), must be construed only
as a moral precept; as otherwise, it would be contradicted by
the texts of Katyayana, Devala and Vyasa. The non-existence
of dominion in the husband and others over stridhana is stated
by Katyayana: “Neither the husband nor the son nor the
father nor the brotheis have authority over stridhana to take
It or to give it away” (h). And provision is made for re-
payment with interest as well as for imposition of fine where
the husband or other person takes a woman’s stridhana by
force. Where the husband uses it with her consent, he is
to pay the principal only when he is able to do so (i). As
the Smritichandrika puts it, “It also appears from repayment
of the principal being enjoined even where stridhana is used
with permission that the husband and the like are wanting
not only in independent power, but also in ownership over
stridhana” (/). While the two excepted kinds ol property
mentioned in Katyayana’s text are excluded from Jimuta-
vahana’s definition of stridhana, they are stridhana, according
to the Smritichandrika, Mayukha and other Mitakshara autho-
rities, devolving on her own heirs, though the woman has no
independent power over them. All are agreed that the
husband has no ownership in them. Her authority over
such property is only subject to her husband’s control.
He may take it, but nobody else can. If he dies before her,
she becomes unrestrained owner of the property, and at her

(d) D Bh , IV, 1 , 20-21 In Ram Gopal v Narain Chandra (1905)
33 Cal, 315, 320, the Court observed* “Under the Bengal School of
Hindu law, a female has not absolute power of disposition over (i)
what she earns by the mechanical arts, (ii) what is given to her by
strangers at any time other than that of marriage, and (in) what slur
inherits from a male or a female relation.”

(e) IX. 11, 12.

(/) V. May. IV. x. 7.

ig) Manu, IX, 199.

(h) V. May, IV, x, 10 (Mandlik’s trans , p. 94) , Smnti Chandrika,.
IX, ii, 13; Viramitrodaya, V, i, 6; Vivada Ratnakara, VIII, ii; Dig.,
594; D. Bh.. IV, i. 24.

(i) V. May., IV, x, 10 (Mandlik, p. 94).

(;) IX. 11. 14.

PARA. 619.] DISPOSING POWER OVER OTHER STRIDHANA.

751

death it passes to her heirs, not to those of her husband (A).
And of course the rule would be the same, if the acquisitions
were made by a widow (/). The restrictions in these texts
cannot be more than moral precepts any more than the
restrictions upon the father’s power in respect of his self-
acquired immovable property (/^) . Neither the husband nor her
issue have any joint interest in the property along with her.
And restrictions on her powers can only be on the ground of
the presumed incapacity of a woman to act without her
husband’s permission while he is alive. But this incapacitv
is not recognised by the texts in respect of most of the species
of stridhana. Where a woman is the sole owner and nobody
else has any vested interest in it, her absolute dominion is a
necessary legal result. There can be no doubt that a husband
would always be able to exercise a very strong pressure upon
his wife, but cases niav occur where they live apart or where
she IS a superseded wife, or where her husband may un-
reasonably withhold his assent to a proper use of her
property, for instance, in favour of her children. Very
probably, the Sanskrit authorities did not intend these rules
to be legal prohibitions. As his power to take her saudayika
property in distress does not deprive her of her absolute
dominion, his power to take other stridhana property,
whether in distress or otherwise, does not deprive it of its
character as stridhana or of her dominion over it. But it has
been held by the Bombay High Court in Bhau v. Raghunath,
that except in the kind known as saudayika, a woman’s power
of disposal over her stridhana is, during her coverture, subject
to her husband’s consent and without such consent she cannot
bequeath it by will when she is survived by her husband
who is not shown to have consented to the will {m).

Immovable property, when given or devised by a husband
to his wife, is stated by the Sanskrit authorities to be never
at her disposal, even after his death (n) though it is her

(/c) See Salemma v. Lutchmana (1898) 21 Mad., 100; Madavarayya
V. Tirtha Sami (1878) 1 Mad., 307.

(/) 2 W. MacN., 239; Brij Indar v. Janki (1877) 5 I.A., 1, 15,
1 C.L.R., 318.

(Z^) Rao Balwant v. Rani Kishon (1897) 25 I.A., 54, 69, 20 All.,
267 ; see ante § 19.

(m) (1906) 30 Bom., 229; Fakirgauda v. Dyamawa (1933) 57
Bom., 488, 497; in Bhagvan Lai v. Bai Divali, A.I.R. 1925 Bom., 445,
It was held that a Hindu wife who lived separately from her husband
for 30 or 40 years could dispose of her non-saudayika property, namely,
property inherited from her father even without her husband’s consent.

(n) Narada cited in V. May., IV, x, 9; Smritichaiidrika, IX, li,
10-11; Viramit., V, i, 5; D. Bh., IV, i, 23.

Restrictions
merely moral
precepts.

Immovables
given by
husband.

752

STRIDHANA.

[chap. XVI,

Succession,

To maiden’s
property.

stridhana in that it passes to her heirs, not to his. It is,
however settled that a husband can by gift inter vivos or by
will confer upon his wife an absolute estate in his immovable
property. And it is only a question of construction as to
what he intended to give or bequeath (o). Accordingly, in
Shalig Ram v. Charanjit Lai, the Judicial Committee, refer-
ring to the supposed rule of Hindu law that in the case
of immovable property given or devised by a husband to
his wife, she had no power to alienate unless the power of
alienation was conferred upon her in express terms, held
that that proposition was unsound (p). The husband either
intends that his wife should have a life-estate in the immov-
able property or intends that she should have an absolute
estate. In the former case, no rule of Hindu law is required;
in the latter, the husband agrees to her full powers of aliena-
tion. And in both the cases the intention is either express
or infericd as a matter of construction.

620 The succession to stridhana varies according as
the deceased woman was married or unmarried, and accord-
ing as her marriage was m an approved or an unapproved
form (pM. It also varies with the species of stridhana#
Lastly the lines of succession vary with the different schools
of law ( q ) .

§ 621 As regards succession to the pioperty of a maiden,
there is no difference between the schools. The only text
upon the subject is one which is vaiiousl)/ ascribed to Baudh-
ayana and to Narada, but which cannot be found in the exist-
ing works of either writer. “The wealth of a deceased damsel
let the uterine bi others themselves take. On failure of them,
it shall belong to her mother, or if she be dead to her

(oj Jdf^niohan Singh v Sri Nath (1930) S7 I A , 291, AIR 1930
P.C , 253, Sunij \Iani\ Rabinath (1908) iS lA, 17, 30 All, 84.
Sasinian v Shib Naravan (1922) 49 I A, 25, 1 Pat, 305, Narsingh
Rao V Mahalakshmi (1928) 55 I.A , 180, 50 All, 375 But property
bequeatlietl to a woman is not her ah'-olnte property, where the will
contains a valid prohibition against alit nations Suraj Prasad v. Mt
Gulab Dei A I R. 1937 All . 197

ip) (1930 57 I A, 282, 289, 59 MLJ, 437, 34 ( W N , 1073.

(pi) The approved forms of marriage are the Brahma and the

Gandharva according to the Dayahhaga, and all the Mitakshara
authorities except the Mitakshara alone which treats the Gandharva
as unapproved See ante §§ 89, 94, Banerjee, M & S, 5th ed , 438.
The unapproved marriage is the Asura. The other five forms are all
obsolete

iq) The disqualifications from inheritance apply to sliidhana suc-
cession See ante §603 Chastity is not a condition precedent, see
ante § 600.

PARA. 621 .] SUCCESSION TO MAIDEN’s PROPERTY.

753

father” (r). The text is silent as to the rule of succession
to be applied in default of the father. The Viramitrodaya
supplies the omission as follows: “In default of the mother
and the father, it goes to their nearest relations” (5), namely,
their sapindas. The teim ‘nearest relations of the parents’
in this context means the sapindas of the father and in their
default, the sapindas of the mother, both in the order of
propinquity {t) . The Bombay High Court deduces this rule
from the principle that where the specific enumeration stops,
the general maxim laid down by the Mitakshara (II, xi, 8)
‘her kinsmen take it, if she die without issue’ must take effect.
It was accordingly held that the father’s mother’s sister was
entitled to succeed in preference to the maternal grandmother
of a deceased maiden (a). Affirming that view, a Full Bench
of the Bombay High Court has held that in default of the
father, his nearest heirs are the heirs to the maiden’s pro-
perty and observed that there was no conflict between the
Mitakshara and the Mayukha on the point (v). According
to that decision, a father’s sister in Bombay took a maiden’s
stridhana in preference to his male gotraja sapindas as
she was the nearer heir. The Calcutta and Madras
High Couits have accepted the principle of the Bombay
decisions, though of course without reference to the authority
of the Mayukha (w). In working out the rule thus estab-
lished, the nearness of the sapinda relationship must be
determined by the particular system of law applicable to the
case under consideration, always treating the fathei as the
person proximity to whom is to be ascertained.

(r) Mit., II, XI, 30; Smriti Ch., IX, 111 , 35; V. May., IV, x, 34,
Viramit., V, ii, 9, Setlur, II, 454 , M adhaviya, § 50 ; D. Bh., IV,
111, 7; D.K.S., II, 1 , 1.

is) Viramit, V, 11 , 9, Setlur, 454, Gandhi Maganlal v. Bai Jadub
(1900) 24 Bom., 192. 212 F.B.

it) In Dtvarka Nath v. Sarat Chandra (1912) 39 Cal., 319, the
Calcutta High Court laid down that in the absence of any rule deter-
mining the nearness among relations of the father in the case of
succession to a maiden’s properly, the question should be decided on
the analogy of the order of succession to the stridhana of a childless
woman mariied in a disapproved form, so far as it is applicable, foi
in both cases the succession is confined to the father’s family.

iu) Janglubai v. Jetha Appaji (1908) 32 Bom., 409; the term
‘nearest relation’ has been held to mean first, the sapindas of the
father and then the mother’s sapindas. Vithal Tiikaram v. Bala Bapu
(1936) 60 Bom.. 671. 677

(i;) Tukarani v. Narayan Ramchandra (1912) 36 Bom., 339 (F.B.).

iw) Dwarka Nath v. Sarat Chandra (1912) 39 Cal, 319 (sister
and sister’s son preferred to father's brothel’s son) , Kamala v Bhagi-
rathi (1915) 38 Mad., 45 (stepmother preferred to mother’s sister) ;
Sundaram Pillai v. Ramaswami Pillai (1920) 43 Mad., 32 (paternal
uncle’s son preferred to father’s sister).

50

754

STRIDHANA.

[chap. XVI,

SuccesMon
to Sulka
Mitakshara.

§ 622. The Mitakshara lays down only two lines of
succession to the stridhana of a married woman: (1) Succes-
sion to sulka and (2) succession to all other stridhana
property. The order of succession to sulka is according to
all the Mitakshara schools as follows. First it goes to the
brothers of the whole blood, after them to the mother, and
in default of her, to the fathei. The Smritichandrika, the
Parasara Madhaviya, the Vivadachintamani, and the Vira-
mitrodaya read the text of Gautama in this way (r). But
that text as cited in the Mitakshara and the Mayukha
and as translated by Dr. Buhlei, would appeal to
place the mother before the uteiine biotheis (y). Haradatta
in his commentary on (iaiilama considms that sulka is the
money which at an asm a wedding the lather has icceived
for giving his daughter away and his oi dei ol succession is
father, mother and utciine biotheis (i: ) . This apparently
was the correct ordei so lai as the oiiginal sulka was con-
cerned which was paid to the parents («). The Sarasvati
Vilasa consliues this text as meaning that it is only after the
mother's death, the sistei's sulka goes to the uterine
brothers (aM. The piepondeiance of authority is in favour
of the view taken by the Viramitrodaya.

The Mitakshaia (II, xi, 14) states that the succession to
sulka IS an exception to the daughlei succeeding to the
mother’s goods A woman's diildren are theiefoie evidentlv
excluded in the lii*-! inslame Theie however nothing to
show what the oidei of suciession is in default of uterine
biotheis, mother and fathei. There is no reason why in
default of the hens mentioned, her own issue should be
excluded altogether They aie the neaiest of km and the
general rule of propinquity must always apply. The analogy
of succession to a woman maiiied in an unappioved form
does not exclude her own issue. But it was assumed m
Bliola Rain v Dhaiii Rani, where it was found that no sulka
was in fact given, that the essential characteiistic of sulka is

(a) Gdiit , XWlll, 25, 26, Snirilu hdiidiikd, IX, in, 32 34, Mddhd-
viyd, §86, bethir, 11, 346, Vivaddchintamani, p 270, Virdmit , V, 2, 12,
Sttlnr, II, p 455, Apararka, trarib in 21 MLJ Journal, 431 The
Vivadd Ratnakara (X, 5, 6) states both the vi(‘ws and is not very
definite The two views die found even in two texts of Gautama
(XXVTII, 25, 26) According to Mi Colehrooke's translation,
Jimiitavdhand cites the text of (^diitamd as meaning that the uterine
brothers come first (D Rh., IV, jii, 27-29)

(>) Mit, II, xi, 14, V May, IV, x, 32
(z) SBE, Vol, Jl, p 306

(a) This lb also the view of the Arlhasastra Shamasastri, 186-187.
(fli) Sarasvati Vilasa, §§303 305.

PARAS. 622-623.] MITAKSHARA ORDER OF HEIRS.

755

that a woman’s own children are absolutely excluded by her
paternal and maternal relations in the matter of inherit-
ance ib) , The sulka in the older sense of bride-price, ulti-
mately received by the bride herself is obsolete; where it is
now paid to the parents or the brother in the Asuia marriage,
it does not raise any question of succession to her stridhana.
Where it is paid to the bride herself, either as the price of
ornaments or household furnishings or as a complimentary
present (c), it would be her ordinary stridhana; for there is
no reason why any dowry given to the wife by the husband
in modern times should be treated as attracting a special
order of succession which was applied to some obscure form
of the ancient bride-piice, which the father may be supposed,
aftei receiving, to have handed back to his daughter.

The order of succession to sulka in the Dayabhaga school
is the same as that to anvadheya or gift subsequent and to
property given by kindred during maidenhood, her issue
taking in the first instance in all the three cases (d).
(§632).

§ 623. The ordei of succession to all othei kinds of
stridhana is the same in all the Mitakshara schools except to
some extent in Bombay. The Mitakshara says: “Hence, if
the mother be dead, daughters take her property in the first
instance; and here in the case of competition between mar-
ried and maiden daughters, the unmarried take the succession;
but on failure of them, the married daughters; and here again,
in the case of competition between such as aic provided and
those who are unendowed, the unendowed take the succession
first; but, on failure of them, those who are endowed” (e).
The order of succession is therefore as follows: —

1. Unmarried daughter;

(b) A.I.R. 1929 AIL. 25.

(c) D. Bh , IV, 1, 15, IV, 111 , 21, Smrjlichandnka, IX, ii, 15, Vyasa,
cited in Dig, II, 592; Apararka, 21 M L.J. Journal, 431, Jolly, T.L.L.,
232-233, Katyayana cited in Viv. Chint. 258, See Falaniappa v.
Chockalingam 57 M.L.J., 817 for a custom of parents’ gift to daughter
reverting to them on her death without issue.

id) D. Bh., IV, 111 , 20-22, 26-29; D.K.S., II, in, 15-18; Judoonath
V. Bussunt Coomar 19 W.R., 264, Hurrymohun v. Shonatun (1876) 1
Cal., 275; Gopal Chandra v Ram Chandra (1901) 28 Cal, 3il, Ram
Gopal V. Narain (1906) 33 Cal., 315; Banerjee, M & S, 5th edn., 487,
491-495. Sarkar, H.L. (7th edn.), 830, Chose, H.L., I, 344-346.

(c) Mit., II, XI, 9, 12, 15-19, 24, Viramit., V, 2, 3, Setliir, II,
p. 447; V. May, IV, x, 20-23, Jagannath v. Ranjit Singh (1898) 25
Cal., 354; Muthappudayan v. Ammani (1898) 21 Mad., 58; Salemma
V. Lutchmana (1898) 21 Mad., 100; Subramanian v. Ariinachalam
(1905) 28 Mad., 1 F.B., Nanja v. Sivabagyathachi (1913) 36 Mad., 116.
In (1898) 21 Mad., 100 supra, Subramania Iyer, J., observed “the
Mitakshara lays down rules which are easy of application, complete
in themselves and on the whole equitable.”

Dayabhaga

order.

Mitakshara:
stridhana
other than
sulka.

756 STRIDHANA [CIIAP. XVI,

2. Married daughter who is either indigent or child-
less (/) ;

3 Mamed daughter who is piovided for, whethei she
is childless oi not (g) ;

4. Daughtei’s daughtei {h) ,

When theie are several grand-daughters hy difieient
mothers and they are unequal in number, they take per
stirpes. But wheie the deceased dies leaving children and
giandchildien, the latter do not so completely lepiesent their
deceased paients as to inheiit along with the childien of
the deceased (i). Theie is no piefcrence as between maiiied
and unmairied giand-daughteis (y).

5. Daughter's son {k) , Sii G. Banerjee suggests that
the adopted son of a daughtei cannot be legarded as a
daughter's son foi the puipose of succession to stiidhana (/).
This position IS obviously untenable, unless the adoption is
made aftei the daughtei’s death by hei husband 189). The
rule of Hindu law is clear that an adopted son stands in the
same position as an aurasa son except in one oi two matters
which are expressly stated in the lexts (§§ 187, 188) (w).

6. Son (n) ;

7. Son’s son (o) ;

(/) Ihna Dcm \ Gokoolanund (1878) 5 l.A , 40, 3 Cal, 587, the
Mitdkhhara says “Unprovided, that is, such as are destitute of wealth
or without issue", 11, xi, 13 flnmairied daughter is preferred to
married daughter also among the Jams, jaiivanti v. Anandi (1937)
A.WR, 1184, AIR 1938 All, 625

ig) Binodc Koomaree \ Furdhan Copal 2 W R C R., 176, Totawa
V. Basawa (1899) 23 Bom, 229

(A) Mit , 11, XI, 15, Siibiamania v. Arunachelani (1905) 28 Mad,
1 (daughter’s daughtei succeeds before daughtei ’s son). Sham Bihari
Lai V Rani Kali (1923) 45 AIL, 715 (daughter’s daughter before son’s
son). Ram Kali v Copal Dei (1926) 48 All, 648, Hukum Chand v.
Sital Frasad (1928) 50 AH, 232, Arnarjit v Algu (1929) 51 All, 478
(daughter’s daughter pteferied to daughtsi’s son).

(/) Craut, XXVIII, 15, Mit, II, xi, 9, 12, 15-19, 24, Banerji M & S,
5th edn , 411, 420-421, Nagesh v Cururao (1893) 17 Bom, 303, 305,
Karuppai v. Sank arananiy ana (1904) 27 Mad, 300, 308.

(/) (1926) 48 All, 648 supra

(A) (1905) 28 Mad, 1 supra, (1929) 51 AIL, 478 supra

(/) M & 5th edn., p. 412.

irn) Teem own v Dinonath 3 W R., 49, Cangadhar v. lliralal (1916)
43 Cal. 941. 971

(n) Karuppai v Sankaranaray ana (1904) 27 Mad, 300 (sons take
as tenants in common without survivorship, and not as joint tenants) ,
Bai Farsan v Bai Somli (1912) 36 Bom , 624 Sons do not include
illegitimate suns, Jagannaih v Narayan (1910) 34 Bom, 553 In the
case of succession to the siridhana of a Hindu widow who remarries,
her sons by her two husbands inherit together, Bapu Appa Hakka v.
Kashinath A.I.R 1934 Bom. 113(1)

(o) Sham Bihari Lai v Ram Kali (1923) 45 AIL, 715 (son’s son
takes after a daughter's daughter), (1928) 50 All, 232 supra. Ram
Kah V. Copal Dei (1926) 48 All. 648.

PARAS. 623-624.] MITAKSHARA ORDER OF HEIRS.

757

Grandsons by different sons inherit per stirpes (p).

§ 624. In default of the above heirs, succession proceeds
in two lines according as she was married in an approved or
unapproved form. If she was married in an approved form,
succession devolves upon her husband (g), and after him on
the husband’s heirs in the order in which they succeed to his
property (r). Her husband’s heirs would be her step-
son ( 5 ), and his son (0 and grandson, co-wife (u), step-
daughter (v), and her son, mother-in-law, father-in-law,
husband’s brother (m;), husband’s brother’s son, sapindas,
samanodakas and bandhus (:r). In Bombay, the widows of
gotraja sapindas would also be entitled to succeed. On
failure of her husband’s heirs, her own blood-relations are
entitled to succeed; in other words, her mother and her father
and in their default, their nearest kinsmen and heiis in order,
by the rule of propinquity (j).

In case she was married in an unapproved form, the suc-
cession goes in default of her son’s sons, to her mother,

(p) Banerji, M & S, 5th edn , pp. 420-421

(<7) Mit., II, XI, 11, Bhimacharya v. Ramacharya (1909) 33 60m.,
452 (husl)and fakes m preference to step-son) , Gur Dial v. Bhagwan
Devi (1927) 8 Lah , 366.

(r) Bai Kesserbai v Hunsraj (1906) 33 I A, 176. 30 Bom., 431;
Jodha V. Darbari Lai AIR. 1927 Oudh, 339 This would not include
the new statutory heirs under the Act of 1937.

(s) (1909) 33 Bom, 452 supra (step-son comes in after husband).

(t) Gojabai v. Shahajirao (1893) 17 Bom., 114 (step-grandson
takes before co-widow and before the husband’s brother’s son).

(//) Kesserbai v Hiinsraj (1906) 33 I A., 176, 30 Bom, 431 (co-
widow takes 111 prefeience to husband’s brother and his nephew) ;
Knshnai v Shnpati (1906) 30 Bom., 333

(v) Nanja v Sivabagyarhachi (1913) 36 Mad, 116 (step-daughter
succeeds liefore husband’s palernal uncle’s son),

( 10 ) A whole brother takes before a half-brother, Parmappa v.
Shiddappa (1906) 30 Bom , 607

(r) Ganeshi Lai v. Ajodhia Prasad (1906) 28 All., 345 (husband’s
sister’s son is preferred to her own sister’s son) .

(k) Mit., IT, XI, 11, Kanalammal v. Ananthamathi (1914) .37 Mad,
293, Ganpat v Secretary of State (1921) 45 Bom, 1106, Motichand v.
Kunwar Kalika (1926) 48 All., 663. In I ithal Tukaram v. Balii Bapu
(1936) 60 Bom, 671, 678, a Mitakshara case, it was held that if a
Hindu widow married in an approved foim dies without leaving any
issue or an> heir m her husband's family, her stridhana propeity
(other than suikd) should be divided in equal shares between hei
brother and sister, following Manilal v. Bai Retva (1893) 17 Bom,
759 and Rajeppa v Gangappa (1923) 47 Bom., 48. But the foimer
IS confined to Mayukha jurisdiction and the latter laised no com-
petition between male and female As between bandhus of the same
class and degree a male is preferred to a female, Kenchava v. Giri-
mallappa (1924) 51 I.A , 368, 48 Bom., 569 That two bandhus of
different relationship but of equal propinquity should share equally
would seem to be a reasonable rule, but is opposed to the observations
of the Privy Council in Jatindra Nath v. Nagendra Nath (1931) .58
LA., 372, 59 Cal., 576,

STRIDHANA.

[chap. XVI,

758

father, and the father’s heirs in order and in their default,
by analogy, it would go to her husband and his sapindas in
order, asm modern Hindu law a wife passes into her husband’s
gotra even if her mariiage be in an unapproved form (z)
(55 89) Manu’s rule of piopinquity would entitle the hus-
band and his sapindas to succeed after the heirs named

Mithila 625 According to the Vivadachintamani, while suc-

cession to sulka is the same as m other Mitakshara schools,
yautaka stridhana devolves upon daughters and failing them,
upon their sons (a) Appaienlly unmarried daughters are
pi ef cried to married daughters All other kinds of stridhana
devolve on sons and unmarried daughters equally (b). In
default of descendants down to the daughter's son, the order
of siK’cession to the pioperlv of a woman in the Mithila
school IS the same as under the Mitakshara law (c).

§ 626. In the Island of Bombay, the District of Gujerat
and Northern Konkan where the Mayukha is the paramount
authority, as regards succession to anvadheya stridhana or
pntidatta the gift subsequent, and the piilidatta or the property given
by the husband thiough affection, both the sons and
daughters take equally, the unmarried among the latter
having preference over the married (f/) On failure of sons
and daughters, daughter’s daughters and daughter’s sons take
together (e). Then succeed son’s sons (/). Failing these,
succession goes to her husband and his heirs or hei father
and his heirs according to the general Mitakshara scheme (g) .

Mayukha

law

Anvadheya

(z) Mil, IT, XI, 11, V May, IV, 28, Rajii v Ammani (1906) 29
Mad, 358 (sister succeeds before hei son), Bhimacharya v Rama-
charya (1909) 33 Bom, 452, Chiinilal v Siirajram (1909) 33 Bom,
433, Govind Ramji v Savitn (1919) 43 Bom, 173 (sister is an heir
and succeeds before paternal uncle) , Dulkin Parbati v Baijnath
(1935) 14 Pdt , 518 (stepmother is entitled to succeed).

(a) Vivadachintamani, 266-269, at p 268, following Yajn , II, 117
and Katvavana

(b) Vivadachintamani, p 266, following Manu, IX, 192 and a text
of Brihdspati, cited in the bmritichandnka, IX, in, 7, Banerjee, M & S,
5th edn, 468-469.

(f) Kamla Prasad v Murk Manohar (1934) 13 Pat, 550 follow-

ing Bachha v Jiigmon (1886) 12 Cal, 348, Banerjee, M & S, 5th edn ,
368-369, but see Mohun Pershad v Kishen (1891) 21 Cal., 344

id) Dayaldas v Savitri Bai (1910) 34 Bom, 385, Banerjee, M & S,
5th edn , p. 436

(e) V. May, IV, x, 20-21, Jagannath v Narayan (1910) 34 Bom,
553. A husband succeeds in preference to hei son born of her
adulterous intercourse. The word 'aprajah' (without issue) m Yajn ,
IT, 145, must be read as correlative to her husband and excludes sons
not born of marriage to him

(/) Banerjee, M & S, 5th edn., 436.

(g) Bai Kesserbai v Hunsraj (1906) 33 I. A , 176, 197, 30 Bom.,
431.

PARAS. 626-627.]

MAYUKHA ORDER.

759

All other technical or paribhashika stridhana as classified All other
by the Vyavahara Mayukha other than the anvadheya and the gt^dhana
pritidatta is governed by the Mitakshara order of succession.

Succession to yautaka is stated at IV, x, 17 in the Vyavahara
Mayukha as devolving on unmarried daughters alone and
not on sons (A). In default of unmarried daughters, the
succession to it appears to be the same as that for other
technical stridhana dealt with in the succeeding passage.

For, the unmarried daughter’s succession to yautaka, in the
first instance, is no departure from the Mitakshara rule of
succession that unmarried daughters take first their mother’s
stridhana and Nilakantha says nothing as to what is to hap-
pen in default of unmarried daughters.

§ 627. The Mayukha states a special rule as regards Non-technical
non-lechnical oi apatibhashika stridhana: “Even if there be
daughteis, the sons or other heirs alone succeed to the
mothei’s properly save the technical stridhana” (i). On this
text, it has been held in Manilal v. Bai Rewa, that as regards
succession to stiidhana, not mentioned in the texts (non-
technical sliidhana), the general prefeience given to male
offspiing over female offspiing in Hindu law should have
effect, though in the case of collateral relations no similar
distinction should be maintained. But in other respects, the
succession to technical and non-technical stridhana is
identical (y). On the authority of Mayukha IV, x, 28, the
woman herself is lecognised as the only stock of descent, and
there is theiefoie no levcitei, on the death of any female heir
that takes the estate, to the heirs of last full female owner.

Accordingly it was held that a woman’s daughtei succeeds in
preference to hei husband. In Bai Raman v. Ja^jivandas,
it was held that the non-technical stridhana of a woman
governed by the Mayukha descends to her son in priority to
her son’s sons, and that sons, grandsons and great-grandsons
will not take collectively the stiidhana property of a woman
as they take the properly of their father (A). The order
of succession theiefoie is as follows: 1. Sons; 2. Son’s sons;

3. Son’s son’s sons; 4 Daughteis; 5. Daughter’s sons; 6.

Daughter’s daughters; and in their default, the husband
and his heirs, or the fathei and his heirs, according as the
woman was married in an approved or unapproved form.

In Kesseibai v. Hunsraj, the Privy Council, in deciding that

(h) V. May., IV, x, 17-18. Bancijee, M & S, 5th edn., 437.

(i) V. May.. TV. x. 26.

(;) (1893) 17 Bom., 758. According to Nilakantha, ‘his nearest
sapmdas’ in the Mitakshara means her near sapmdas through him,

V. May , IV, x. 28.

ik) (1917) 41 Bom.. 618.

760

STRIDHANA.

[CHAP. XVI,

Dayabhaga

School.

Surces'^ion
to yautaha.

the stiidhana of a widow dying without issue goes to her
co-widow in preference to her husband’s brothei oi hi other’s
son, held that the Mayukha (IV, x, 28-30) does not on its
true construction alter or supersede the doctrine of the Mitak-
shara, that the text of Brihaspati quoted in the Mayukha as
well in the Ratnakara which refers to a group of six heirs is
too ambiguous to be of any value and that it does not
indicate any order of succession (Z) . The Dayabhaga
ariived at a similar result by treating Brihaspati’s text not
as declaratory of the order of inheritance but merely as
suggesting that the peisons named therein aie also heirs (m) .

§ 628 The Dayabhaga divides stiidhana for purposes
of succession into thiee classes I The yautaka, II. the
anvadheyaka oi gifts and bequests made by the father subse-
quent to marriage, and III the ayautaka {n) The ayautaka
includes not only gifts and bequests made by relations in-
cluding the fathei befoie maiiiage, but also gifts and bequests
made by relations othei than the fathei after marriage.
Yaulaka consists of gifts “given before the nuptial
file”. The High Couit of Calcutta has held that this is only
a teim to signify all gifts duiing the continuance of the
rnariiage ceremonies (o).

The above classification is however material only for the
earlier senes of heirs As to the later series of hens, theie
IS no difference and the order of succession is the same for
all kinds of stridhana.

§ 629. The order of succession to yautaka is, m the first
instance, as follows (p) — (I) unaffianced daughters; (2)
daughteis beliothed but not actually maiiied; (3) married
daughteis who have or are likely to have male issue {q) ; (4)
daughteis who are barren and widowed daughteis who are

(/) (1906) 33 I A, 176, 190, 30 Bom, 431 approving Bachha v
Jugmon (1886) 12 Cal, 348, and Gojabai v Shahajirao (1893) 17
Bom, 114 The text of Brihabpati as explained by Sir G Banerjee
(M & S, 5th edn , 455-456) is referred to by the Privy Council

(m) D Bh , IV, ill, 31-36

(n) D Bb , IV, II, 111 , Banerjee, M & S, 5lb edn, 473

(o) Bistoo Pershad Burrai v Radha Soonder Nath 16 W R , 115;
Dayalallva, X. 15, Setliir, II, 501.

(p) D Bh., IV, II, 13, 22, 23, 26; D K.S., II, in, 5-7, Dayatattva
X, 12-15, 17-20; Banerjee M & S, 5th edn, 477-483.

(q) Including a widowed daughter having a son at the time the
succession opens, Charu Chander Pal v. Nobo Sunden Dasi (1891)
18 Cal., 327.

PARAS. 629-631.]

DAYABHAGA ORDER.

761

childless taking together equally (r) ; (5) sons (s) ; (6)

daughter’s sons (t) ; (7) son’s son; (8) son’s grandson (a).
Failing the great-grandson, the succession devolves on the
son of a rival wife, and on his son and grandson in order (v) .
Thereafter, if the marriage was in an approved form, the
successive heirs to yautaka are the husband, brother,
mother and father iw). If the marriage was in an unapproved
form, the order of succession is mother, father, brother and
husband (rr).

§ 630. In default of all the above heirs, whether the
deceased woman was married in an approved or unapproved
form, the order of succession is uniform for all descriptions
of stridhana (y) : (1) husband’s younger brother ( 2 ) ; (2)
husband’s brother’s son; (3) sister’s son (a) ; (4) husband’s
sister’s son; (5) brother’s son; (6) daughter’s husband. In
default of all these six heirs, the father-in-law, her husband’s
elder brother and her husband’s other sapindas according to
the nearness of sapinda relation succeed to stridhana (6) ;
failing them, her husband’s sakulyas and samanodakas (c).
Lastly, according to Jagannatha, the father’s kinsmen come
in as heiis and after them, the mother’s kinsmen (rf).

§ 631. The successive heirs, in the first instance, to the
gifts or bequests made by the father after marriage {pitru-
datta ayautaka stridhana) are (1) the maiden daughter;

(/■) Dig., II, pp. 611-612.

(s) D. Bh.. IV. ii. 25
{t) D.KS.. II. ill. 9.

(m) D.KS.. 11. 111. 10
iv) Ibid, 11-13.

(w) DKS, II, 111 , 14-17, Banerjee, M & S, 5th edn., 490-491.
ix) D Bh, IV, 111 , 6, D.K.S, II, 111 , 19-22; Banerjee. M & S, 491.
(y) D. Bh, IV, 111 , 37, Dayataltva, X, 27-36; DKS., II, vi, 1-9.

( 2 ) Debt Prasanna Roy v Ifarendra Nath (1910) 37 Cal., 863
(husband’s younger brother succeeds before step-brother) ; see also
Gunamani v. Debt (1919) 23 C.WN.. 1038

(a) Sister's son includes son of a step-sister; Dasaraihi v. Bipin
(1905) 32 Cal., 261; Sashi Bhiisan v Rajendra Nath (1903 ) 40 Cal.,
82. But a sister’s son’s son is no heir undei the Dayabbaga, Satish
Chandra v. Haridas A l.R. 1934 Cal . 399

ib) D. Bh., IV, 111 , 39, D.K.S., II, vi, 10, Dayataltva, X,
38; Dig., II, 624* — “First, the father-in-law’s great-grandson in
the male line succeeds, after him, the husband’s paternal grand-
father or his issue; and next, the husband’s paternal great-grand-
father or his offspring ” See Banerjee, M & S, 5tb edn , 499.

(c) D. Bh., IV, 111 , 37; Dayataltva, X, 27-36; D.K.S., II, vi, 1, 9, 13;
Vyavastha Darpana, p. 727 note. Dig., II, 623-624; M & S, 5th edn.,
496-499.

id) Dig., II, p. 624.

Later senes
of heirs

Succession to
pitrudatta
ayautaka
stridhana.

762

STRIDHANA.

[chap. XVI,

Succession to

ayautaha

stridhana.

(2) the son (e) ; (3) the daughters who have or are
likely to have male issue (/) ; (4) son’s son; (5)
daughter’s son; (6) son’s grandson; (7), (8) and (9) the
son of a rival wife and his son and grandson; and (10)
the barren and the sonless widowed daughters taking
together (g) .

The hens to ayautaka stridhana in the first in-
stance aie successively (1) the unbetrothed daughter {h)
and the sons in equal shares (i), on failure of both of
them, (2) mariied daughters (y) who have, or are likely
to have, male issue, this class must include a betrothed
daughter; (3) son’s sons; (4) daughter’s sons (A:) ; (5)
barren and childless widowed daughters (/) . According
to the r)a\a Krama Sangiaha. the great-giandson, the step-
son, and his son and giandson should come hefoie haiien and
childless widowed daughteis and allei the daughter's son (///).

§ 632. The succession to piopeit) given by kindied,
including jiaixnils dining maidimhood. to sulka oi perquisite
and to gifts subsequent to maniage [anvadheya) including
gifts or bequests made hv the father, in other words, to all
kinds of stiidhana eviepl yaulaka, devolves in default of
lineal descendants, on the uterine brothei, the mothei, the
father and the husband. This the oidei given in the

Dayabhaga (/?) and has been followed by Mr Justice Mitlei
111 Juddo Noth \ Busunta Kumai [o)

(e) Prosanno Kut7iar \ Sarat Shoshi (1909) 36 Cal, 86 (son is
preferred to a married daughter)

if) Cham Chunder Pal \ Nobo Sundari (1891) 18 Cal, 327 (a
widowed dauglitei witli a dumb son prefeiied to a daughter's son).

(^) ]VI & S, 5th edn , 484

(h) I) Bh , IV, 11 , 9 Srcenath v Siirho 2 BLR (A(^T), 144,
10 WR, 488, Baneriee, M & S, 5th edn, 475-477

(/) Basanta v Kannhshxa (1906) 32 1 A , 181, 33 Cal, 32

(/) Delanney v Pran Han (1918) 22 C W N , 990 (a married
daughter is excluded hy a M»n)

(A) D Bh , tv, 11 , 10, 11 A daughter's son does not include step-
daughter’s son and a brother’s son is preferred to a step-daughter's
son, Krishnabihari \ *^arojini (1933) 60 Cal, 1061

(/) D Bh. IV, 11, 12

(m) DKS., II, ,v, 9, MacN, 39-40, Vvav Darp , 716-719, M & S,
5th edn , p. 477

(n) D. Bh., IV, 111 , 10, 29.

(o) 19 W.R., 264 (mother succeeds before husband) , Hurry Mohun
Shaha \ Sonatun Shaha (1876) 1 Cal, 275 (the husband not the
heir until after the brother, the mother and the fathei ) ; Gopal Chandra
V Ramrhandra (1901) 28 Cal., 311 (brother succeeds before husband) ;
Ram Gopal v. Narain Chandra (1906) 33 Cal, 315 (mother takes
before husband), Mahendra v. Gins (1915) 19 C.W.N , 1287 (brother
inherits before husband).

PARAS. 632-634.] SUCCESSION TO DANCING GIRLS.

763

In default of these heirs, the order is uniform for all des-
criptions of stridhana and is the same as that stated above
for yautaka stridhana (§630) ip).

§ 633. After some conflict of authority, it has been held
by a Full Bench of the Calcutta High Court that prostitution
does not sever the tie which connected a woman to her kindred
by blood and that her stridhana passes on her death to her
brother’s son in the absence of neaier heirs ( 7 ). The same
view is taken by all the High Courts (/).

§ 634. Succession to the property of dancing girls more
or less follows succession to stridhana, females taking in
preference to males. In Subharatna Mudali v. Balaknshna-
swami Naidu, it was held that the 01 dinary Hindu
law does not apply lo such pioperly, that usage
gives preference to females in niatleis of succession
and that when they succeed, they lake absolutely ( 5 ) .
In Balasundaram v. Kamakshi^ a distinction was made
in the case of a dancing girl who maiiied but
during her widowhood reveited to hei original calling, and
it was held that her daughlei succeeding to her took only
a limited estate (^). In Beta Chandt amnia v. Chandtan
Nagamma^ it was held that in the case of dancing girls, sons
and daughters share the inheritance equally according to
custom (a). In Shanrnugathammal v Gomathi Ammal, il
was held that the members of the dancing girl caste are not
governed by the ordinary Hindu law in matters of succes-

(p) Banerjee, M & S, 5th ed., 495-498

iq) Hiralal Singha v. Tripura Charan (1915) 40 Cal., 650 F.B.
(brother’s son is an heir) overruling on this point In re Kaminev
Money Bewah (1894) 21 Cal, 697 and Sarna Moyee v Secretary of
State (1898) 25 Cal, 254 and approving Tripiirac haran v Harimati
Dassi (1911) 38 Cal, 493. The illegitimate daughter will succeed to
her mothers property but is excluded by legitimate issue, §563.

(r) Sitbbaraya Billai v. Ramaswanu (1900) 23 Mad., 171 (step-
son IS an heir) , Mcenahi>hi v. Mumandt (1915) 38 Mad, 1144; Naratn
Dass V. Tirloh Tiwari (1907) 29 All, 4 (husband) , Narayan v. Laxman
(1927) 51 Bom., 784 (there is heritable blood between degraded
woman and her sister) , Kothandarain Naidu v. Subbier (1927) 52
M.L.J , 514; Taleb Ah v. Abdul Razack A.I.R. 1925 Cal., 748 (suc-
cession to a prostitute’s stridhana is governed by the ordinary Hindu
Law of Inheritance — a Dayabhaga case). See also Sundan Dossee v.
Nemye Charan (1907) 6 Cal. L.J., 372; Ishwari Prasad v. Rai Hari
(1927) 6 Pat., 506, 540; Neelatva v. Gurshidappa A.I.R. 1937 Bom.,
169.

(s) (1917) 33 M.LJ., 207; Subramania v Rathnauehi (1918)
41 Mad, 44, 73 F.B.; Narayan v Laxman (1927) 51 Bom., 784, 786

it) 119371 Mad, 257, Visvanatha v Doraiswnmi (1925 ) 48 Mad,
944. 947.

ill) (1923) 45 M.L.J.. 228.

Succession to

degraded

women.

Succession to
dancing girls.

764

STRIDHANA.

[chap. XVI,

Sion, but by caste custom and usage (z;). There does not
seem to be any valid reason why the property of a dancing
girl should not be governed by the rules of succession to
the stridhana property except to the extent to which
there is a usage to the contrary. Whether the texts
1 elating to stridhana directly apply to dancing girls or not,
the lules of succession they lay down will apply to them as
rules of justice, equity and good conscience; they will also
apply hy the lule of analogy (zc). As to the estate taken
by a female heir succeeding to a dancing girl’s property,
since it would be difficult in most cases to apply the doctrine
of level ter, she must be deemed to be a stock of descent taking
absolutely except wheie hei succession is to the propeity of
a niariied woman

( 2 ) (1931) 67 MLJ, 861.

{w) Ante §51, Siibramania v Rathnavelii (1918) 41 IVIad , 44,
74, 75 FB., Vithal Tuharam v Ralu Rapii (1936) 60 Bom, 671, 678
following Mecnahbhi Ammal \ Rama Anar (1912) 37 Mad, 396

CHAPTER XVII.

WOMAN’S ESTATE.

§ 635. The typical form of estate inherited by a woman In inherited
from a male is the widow’s estate (a). The same limitations property,
apply to all estates derived by a female by descent from
a male, oi a female, whether she inherits as daughter, mother,
grandmother, sister or as any other relation. In the phrase-
ology of English law, her estate is neither a fee nor an estate
for life, nor an estate tail (6). This is the view in all the
schools except in Bombay.

It was at one time common to speak of a widow’s estate Not a life
as being one foi life. But this was wholly incorrect. It estate,
would be just as untrue to speak of the estate of a father
under the Mitakshara law as being one for life. Hindu law
knew nothing of estates for life, or in tail, oi in fee. It
measured estates not by duration but by use (c) . A Hindu
widow is entitled to the full beneficial enjoyment of the
estate. So long as she is not guilty of wilful waste, she is
answerable to no one (d) . The restrictions upon the use
of an estate inherited by a woman are similar in kind to
those which limit the powers of a male holder but different
in degree. The distinctive feature of the estate is that, at
her death, it reverts to the heirs of the last male owner, or Reverts to
to the heirs of the last full female owner in the case heirs of last
of stridhana property. She never becomes a fresh stock of owner.

(а) The Hindu Women's Rights to Property Act (XVIII of 1937)
describes it as the limited interest known as a Hindu woman’s estate.
[Section 3 (3) .] See ante § 589.

(б) Rangasami Gounden v. Nachiappa Gounden (1919) 46 I.A.,
72, 79, 42 Mad., 523.

(c) VasonjL v. Chanda Bibi (1915) 37 All., 369 P.C.; Ram Bahadur
V. Jagarnath (1918) 3 P.L.J., 199, 212, F.B. This may be true of early
Hindu law, but Katya>ana and Jimutavahana evidently knew the
distinction between a life estate and an estate of inheritance*
“Let her enjoy her husband’s estate during her life and not
as with her separate property, make a gift, mortgage or sale*
of It at her pleasure But when she dies, the daughters or others who
would regularly be heirs, in default of the wife, take the estate.*’
(D. Bh., XI, 1, 57). Debi Prasad v. Golap Bhagat (1913) 40 Cal.,
721, 766, 767, 772, per Mookerjee, J And from before the Tagore case,
estates for life have been known in connection with gifts and bequests
in Hindu law.

(d) Renka v. Bhola Nath (1915) 37 All., 177.

woman’s estate.

[chap, xvn,

766

Limited
power of
disposal.

Woman’s
estate in
Bombay.

descent (e). The restrictions on her powers of disposition
are the same whether she inherits from a male or a
female ( /) .

While the Sanskrit authorities state that a widow has res-
tricted poweis in dealing with the estate she may inherit
from her husband, they nowhere lay down in terms that the
same lestrictions apply to other female heirs Again, the
roiiise of inheritance laid down m the earlier texts seems to
assume that the estate reverts after a widow to the heirs of
the last male; but until we come to Jimutavahana, we are
iiowheie told that it is the rule (g). The wording of the
Mitakshara suggests that except in the case of the widow
or inothei it is not the lule ih).

As legards the foimei point, viz , the limited poweis
of disposal possessed b) a female, we must recollect
that, according to Hindu law, restriction was the rule,
absolute powei the exception (z). Katyayana says: “Let the
childless widow, preserving unsullied the bed of her loid,
and abiding with hei venerable pioteclor, enjoy with modera-
tion the pioperty until her death After her, let the heirs
take it But she has not property therein to the extent of
gift, moitgage, oi sale*’ (y)

636. In Bombay the Couits have divided the female hens
into two classes ( I I those who by mairiage have entered into
the gotia of the male whom they succeed and (2) those who

(e) Collector of Masiilipatam v Cavaly Vencata (1861) 8 M.I.A.,
529, 550, Kery Kohtany v Moneeram (1875) 13 BLR., 5,

53, 76, 19 WR, 367, Vasonji v Chanda Bibi (1915) 37
All, 369, 379, PC, Bijoy Gopal \ Krishna Mahishi (1907) 34 I.A.,
87, 91-92. 34 Cal . 329

if) Sheo Shankar v Dehi Sahai (1903) 30 1 A , 202, 25 All., 468;
Sheo Partah v The Allahabad Bank, Ltd (1903) 30 1 A , 209, 25 All.,
476, Debt Mangal Prasad v Mahadeo Prasad (1912) 39 I A., 121, 34
All, 234, Keeriu v Koolahul (1839) 2 MIA, 331, Collector of
Masulipatani v Cavaly Vencata (1861) 8 MIA., 529, Thakur Deyhee
V Rai Baluk Ram (1866) 11 M.I A , 139, Bhugwandeen Doobey v.
Myna Baee (1867) 11 M.I A , 487, 510

ig) D Bh, XI, 1 , 57-59, XJ, n, 30, 31, Vnamil , III, j, 3.

(h) bee ante §612.

(i) Mami, VllI, 416, IX, 2, 3, 104, Baudh , II, 2, 27, Narada,
XII, 28-30, Smiitichandrika, XI, 1, 35 39, D. Bh., XI, 1, 61, Collector
of Masulipatani v Cavaly Vencata (1861) 8 MIA., 529, 551

{]) D Bh , XI, 1, 56, V May, IV, 8, 4, Vivada Chmtamani, 292,
Bnhaspati, cited brnritichandrika, XI, 1, 28, Viramit., p 136, Narada,
I, 2, 26 27, “The sages declare that the transactions of a woman have
no validity, especially the gift, hypothecation or sale of a house or field
— such transactions are valid when they are sanctioned by the husband;
or on failure of the husband, by the son, or on failure of the husband
and the son, by the king”

PARA. 636.]

woman's estate in BOMBAY.

are of a different gotra, or who upon their marriage will
become of a different gotra from the last male owner (k ) .
Under the former head come the widow (/), mother (m),
paternal grandmother (/i), paternal great-grandmother and
the widows of gotraja sapindas (o), like a son’s widow (p),
brother’s widow, uncle’s widow. They take a limited estate
similar to that of a widow and on their death, the property
passes not to their heirs, but to the heirs of the last male
owner {q). Under the latter head are ranked the daughter,
the son’s daughter, the daughter’s daughter, the sister and
the daughters of descendants, ascendants and collaterals
within five degrees who inherit as bandhus in the order of
piopinquity. They take the piopeity inheiited by them from
males absolutely as full owners (#). On their death, such
piopeity passes as stiidhana propeity to their own heirs in
accordance with the Milakshara oi the Mayukha lules of
succession as recognised in Bombay. They have already been
staled ( § § 623, 624, 627 ) . The above distinction between the

(A) Navalram v. Inland Kuhor U865) 1 Bom. H.C., 209, Vijia-
rangani v. Lakshuman (1871) 8 Bom. H.C. (O.C.J.), 244, Haribhat
V, Damodarbhat (1879) 6 Bom, 171; Bharmangauda v. Rudrapgauda
(1880) 4 Bom., 181, Tuljaram v. Mathuradab (1881) 5 Bom., 662, 670;
Bulakhidas v. Kebhavlal (1882) 6 B<jm , 85, Bhau v. Raghunath (1906)
30 Bom., 229 approved on this point in Balwant Rao v. Baji Rao
(1921) 47 I.A., 213, 223, 48 Cal., 30, Vithappa v. Savitn (1911)
34 Bom., 510; Gulappa v Tayaiva (1907) 31 Bom., 453.

(Z) Bhabkar v. Mahadeo (1869) 6 Bom. H.C. (O.CJ), 1.

(m) Vrijbhuhandab v Bai Parvati (1908) 32 Bom., 26, Vinayak
V. Lakshmibai (1861) 1 Bom. II.C , 117, Narbappa v. Sakharam (1869)
6 Bom. H.C. (AC J.), 215.

(n) Dhondi v Radhabai (1912) 36 Bom., 546; M'tdhav Ram v.
Dave (1897) 21 Bom , 739.

(o) Lulloobhoy v. Cassibai (1881) 7 LA., 212, 5 Bom., 110.

(p) Gadadhar v Chandrabhagabai (1893) 17 Bom., 690 F.B.
iq) Bhau v. Raghunath (1906) 30 Bom., 229.

(r) Balwant Rao v. Baji Rao (1920) 47 T A., 213, 48 Cal., 30.
The leading cjhe d'-i lo the lights of daughters is one known as
Dewiovvcrbacc b case (1 Bom H.C., 130) decided on the Equity Side
of the Supreme Court in 1859. Haribhat v. Damodarbhat (1879) 3
Bom., 171, Bulakhidub v. Kcbhailal (1882) 6 Bom., 85; Babaji v.
Balaji (1881) 5 Bom., 600; Bhagirthibai v. Kahnuji Rao (1887)
11 Bom., 285, F.B., Janhibai v. Sundra (1890) 14 Bom., 612, Gulappa
V. Tayawa (1907) 31 Bom., 453, Vithappa v. Savitri (1910) 34 Bom,
510. The leading case as to the sister is Vinayak v. Luxumeebaee
(1861) 1 Bom.H.C., 117, affd in (1864) 9 M I.A., 516, 520, Rindabaiy.
Anacharya (1891) 15 Bom, 206; Tuljaram v. Mathura Das (1881)
5 Bom., 662 (grandniece) ; Bhagwan v. Warubai (1908) 32 Bom., 300.
After the later decisions of the Judicial Committee m (1903 ) 30 I.A.,
202 and (1903) 30 LA., 209, the question of the character of the
estate of the daughter, sister and similar heirs was again examined
and reaffirmed in Bhau v. Raghunath (1906) 30 Bom., 229;

Shidramappa Nilappa v. Neelawabai (1933) 57 Bom., 377, 383.

[chap. XVII,

768

woman’s estate.

Hindu
Women’s
Rights to
Properly
Act, 1937.

Her power
of disposal.

two classes of female heirs in Bombay does not obtain where
a female inherits the slndhana property of a female, for in all
those cases, she takes it as full ownei absolutely ( 5 ). Where
there are seveial daughters or sisters, they take absolute
estates in severalt), and not as joint tenants (0-

? 637 By the Hindu Womeirs Rights to Propeity Act,
1937, the widow of a Hindu and his widowed daughter-in-law
and giand daughtei-in-law aic entitled to inherit to his estate,
not only in default of, but along with, his male issue. Their
shales aic staled in the Act and its provisions have already
been discussed (Chap. XIV). The widow of a deceased
copaicenei in a Mitakshara Hindu family succeeds, whether
her husband has left male issue or not, to his interest in the
coparcenary propeity, thus defeating the right of survivorship
of his collaterals. The inteiest devolving on a Hindu widow
in the above cases under the Act is the limited interest known
as a Hindu woman’s estate [sec. 3 (3)].

i:; 638. Extent of a Wom\n\s Estvte. — The nature of
a u Oman's estate must, as already stated, be described by the
restrictions which are placed upon it, and not by terms of
duration It is not a life-estate, because m certain circum-
stances she (an give an absolute and complete title (u). Nor
IS It in any sense an estate held in trust for reversioners.
Within the limits impos('d iijion her. the female holder has
the most absolute powei of enjoyment and is accountable to
no one (v) She fully rej3iesents the estate, and, so long as
she is alive, no one has any vested inteiest in the succession
The Privy Council observed m Janaki Animal v. Narayana-
swami iw) : ‘‘Her light is of the nature of a right of property;
her position is that of owner: her powers in that character
aie however limited”. As was more fully stated by
their Lordships in Moniram Kolita v. Kerry Kolitany,

( 5 ) Gandhi Maganlal \ Bai Jadab (1900) 24 Bom, 192 FB.;
Narayan v Waman (1922 ) 46 Bom, 17, Parshottam v Keshav Lai
(1932) 56 Bom, 164

(^) Rindabai v Anacharya (1891) 15 Bom , 206, V ithappa v.
Savitri (1910) 34 Bom, 510, Kisan v Bapu AIR 1925 Bom., 424, 27
Bom L.R., 670.

(ic) Bijoy Gopal Mukherji v. Krishna Mahishi (1907) 34 I.A., 87,
91, 34 Cdl , 329, Rangaswami Gounden v. Nachiappa Goiinden (1919)
46 lA, 72, 79, 42 Mad, 523, Radha Ram v Bnndarani A I.R. 1936
Cal., 392, 395, 63 CLJ., 263, Ram Sumran v. Govind Das (1926)
5 Pat , 646, 676.

(v) Renka v Bhola Nath (1915) 37 All, 177, Awadh Narain v.
Santan Narain AIR. 1937 Pat , 325

iw) (1916) 43 LA, 207, 209, 39 Mad., 634, 637; Vasonji v. Chanda
Bibi (1915) 37 AIL, 369, 379 P.C., citing the last sentence.

f>ARA.638.] LIMITED POWERS OP DISPOSAL

169

*‘The whole estate is for the time vested in her absolutely
for some purposes, though in some respects for only a
qualified interest. Her estate is an anomalous one, and has
been compared to that of a tenant-in-tail. It would perhaps
be more correct to say that she holds an estate of inheritance
to herself and the heirs of her husband. But whatever her
estate is, it is clear that until the termination of it, it is im-
possible to say who are the persons who will be entitled to
succeed as heirs to her husband. The succession does not open
to the heirs of the husband until the termination of the widow’s
estate. Upon the termination of the estate, the property
descends to those who would have been the heirs of the
husband if he had lived upto and died at the moment of her
death” (jr).

The limitations upon her estate are the very substance of
its nature and not merely imposed upon her for the benefit
of reversioners. They exist as fully if there are absolutely
no heirs to take after her, as if there were. Acts which would
be unlawful as against heirs expectant are equally invalid
as against the Sovereign claiming by escheat (y). The prin-
ciples which restrict a widow were laid down by the Judicial
Committee in Collector of Masulipatam v. Cavaly Vencata as
follows; “It is admitted, on all hands, that, if there be collateral
heirs of the husband, the widow cannot of her own will alien
the property except for special purposes. For religious or
charitable purposes, or those w^hich are supposed to conduce
to the spiritual welfaie of her husband, she has a larger
power of disposition than that which she possesses for purely
worldly purposes. To support an alienation for the last,
she must show necessity. On the other hand, it may be
taken as established that an alienation by her, which would
not otherwise be legitimate, may become so if made with
the consent of her husband’s kindled. But it surely is not

ix) (1880) 7 I.A., 115, 154, 5 Cal., 776, 789, Mohadeay Kooer v.
Hartik Narain (1883) 9 Cal., 244; Anandabai v. Rajaram (1898) 22
Bom., 984; Lakshmi v. Anantarama [1937] Mad., 948 F.B.; Ram
Krishna v, Kausalya A.I.R. 1935 Cal., 689.

(y) Collector of Masulipatam v, Cavaly Vencata (1861) 8 M.I.A.,
529, 550, Kundan v. Secretary of State (1926) 7 Lah., 543; Dhondo v.
Balkrishna (1884) 8 Bom., 190; but see Karuppa Tevan y. Alagu
(1882) 4 Mad., 152. The widow of a Nambudri Brahman is governed
by the same rules, Vasudevan v. Secretary of State (1888) 11 Mad.,
157, 165. The powers of a Hindu widow as administratrix of an
estate are wider. A Hindu Widow who is an executrix or an adminis-
tratrix will have the powers under secs. .307 (1) and 308 of the
Indian Succession Act, 1925, subject to the restrictions contained in
sub-sec. 2 of sec. 307; see Kamakhya v. Hari Churn (1899) 26 CaL
607; Chum Lai v. Snmati Makshada (1919) 23 C.W.N., 652,

51

Her power
of disposal
defined by
Judicial
Committee.

770

woman’s estate.

[cttAP. XVll,

Full power of
enjoyment.

Not a trustee.

Her savings.

the necessary or logical consequence of this latter proposi-
tion, that, in the absence of collateral heirs to the husband,
or on their failure, the fetter on the widow’s power of alienation
altogether drops. The exception in favour of alienation
with consent may be due to a presumption of law that, where
that consent is given, the purpose for which the alienation is
made must be proper” (z).

§ 639. It IS probable that, in early times, a widow was
morally, if not legally, bound to restrain her personal ex-
penditure within the modest limits which were considered
suitable to her bereaved condition {a). But whatever may
in former times have been the force of the injunctions con-
tained in such passages of the Sastras, or whatever may
now be their effect as leligious oi moral precepts, they
cannot be legarded at the present day as of any legal force,
in restricting a widow in the use and enjoyment of her
husband's property while she lives. And, of course, there
could be still less reason for imposing any such restrictions
upon other female heirs.

A woman’s absolute right to the fullest benefit of her life-
interest has long been recognized (6). She is in no sense a
trustee foi those who may come after her. She is not bound to
save the income, nor to invest the piincipal. If she chooses to
invest it, she is not bound to prefer one form of investment to
another as being more likely to protect the inteiests of the re-
versioners. She is forbidden to commit waste, or to endanger
the property in her possession, but, short of that, she may
spend the income and manage the piincipal as she thinks
proper (c). If she makes savings, she can give them away

( 2 ) The position of a widow m ihe Punjab appears to be exactly
the same, 1(1926) 7 Lah , 543 supra] except that her powers of
disposition are only to be exercised for secular objects, Punjab
Customary Law II, 177, 179, 203, 209.

(а) It seems to have been the opinion of Mitter, J , that she was
still subject to such a restraint. See his remarks, Kery Kolitany v.
Moneeram (1874) 13 B L.R., 5, 19 W.R., 367, but see contra, per
Glover and Kemp, JJ , ib., 53, 76.

(б) Kaniavadhini v Joysa (1866) 3 Mad. H.C., 116, Cossinaiit
Bysack v. Hurrosundry 2 M. Dig., 198, 214, affirmed in Privy Council,
Morton, 85; V. Darp., 97, Gooroobuksh v Lutchmana Mad. Dec. of
1850, 61; Ram Sumran v. Gobind Das (1926) 5 Pat., 646; Radharani
V, Bnndarani A.l.R. 1936 Cal., 392, 395, 63 (j.L.J., 263.

(c) Hurry doss v. Uppoornah (1856) 6 M.I.A., 433; Biswanath v.
Khantomani (1870) 6 B.L.R., 747; Hurry doss v. Rungunmoney Sev,
657, Sarat Chandra v. Charusilla (1928) 55 Cal., 918. As to the right
of a widow to work or to lease quarries, and to apply the proceeds as
her own income, see Subba Reddi v. Chengalamma (1899) 22 Mad.,
126, Bishu Nath v. Ram Ratan A.l.R. 1925 Oudh, 529.

I^AkAS. 639-640. J RIGHT t6 accumulations.

in

as she likes. She is however bound to pay out of her income
the interest on, but not the principal of, the last owner’s debts.
She is not entitled to ignore the charges which are legally
payable out of the gross income such as the peisheush and
maintenance payable to the other members of the family, thus
adding to the debt left by the husband or other full owner so
as to prejudice the reversioners (d).

§ 640. The law as to the right of a woman to accumu-
lations from the estate of the last male holder is now settled.
These accumulations may be: 1st. Accumulations made by
her husband, or other male to whom she succeeds. 2nd. Ac-
cumulations made or income accrued and due to her after his
death, and before the estate came into her possession. 3rd.
Accumulations made by herself personally, and either in-
vested, oi converted into some different form, or else remaining
uninvested in her possession.

( ] ) Accumulations made by the last male holder would
in general be accretions to his estate, and follow it (e). In
such a case, of course, no question could arise. The female
would take the whole as an entire estate, subject to the usual
restrictions. There might, however, be a special settlement
which would cause the corpus of the last male holder’s estate
to pass to a male, and the accumulations to go by heirship
to a female. In such a case she would hold these accumula-
tions as a new estate, subject to the restrictions which apply
to the property inherited by a female (/) .

{2) Accumulations which have been made from the
income of the estate after the death, but befoie it reached
the hands of the widow or other limited owner belong to her
absolutely. They are her income and it is not easy to see
how they can be accretions to the estate. Of course it is
open to the limited owner to make it such an accretion.
But in the absence of any such incorporation, proved
or presumed, the surplus income of the estate can only be

(f/) Jaganadhani v. Vighnesvarudii (1932 ) 55 Mad., 216; Appala-
6wamy v. Venkanna (1914) M.W.N., 488; Boddii Joggayya v. Goli
Appalaraju (1913) M.W.N., 275; Thiruvengadam Pillai v. Gnana

Sambandha A.LR. 1932 Mad., 97 (2) ; Gade Subbayya v. Raja Kunda*
kuri (1932) 35 M.L.W., 93, A.LR. 1932 Mad., 257; Ramasami Chetti
V. Mangaikarasu (1895) 18 Mad., 113; Debi Dayal v. Bhau Partap
(1904) 31 Cal., M'6\VeeTabadia v. Marudaga (1911) 34 Mad., 188,
192.

(e) Chundrabullee y. Brody 9 W.R., 584; In re Harendranarayan*S‘
goods (1869) 4 B.L.R. (O.CJ.), 41.

(/) Soorjeenioney v. Denobundo (1862) 9 M.1A., 123.

Her interest in
accumulations

made by
last holder

After her
estate fell in

in

woman’s estate.

I CHAP. XVII,

M ade by
herself.

treated as absolutely at her disposal (g). Where the limited
owner has never been in possession of the estate or was a
minor, no intention to make it an accretion to the estate can
be attributed to her: she never had the option of saving or
spending it and therefore her right to the full usufruct must
be recognised (A) .

(3) The third class of case is the one on which there
has been a conflict of decisions (i). It is admitted that
a female heir need not make any savings at all. She may
spend her whole income every year, either upon herself, or
by giving it away at her pleasure (;) . But suppose she does
not choose to spend her whole income, but accumulates the
savings, may she dispose of these at her pleasure? If she
has invested them, or purchased property with them, does
It still remain at her disposal during her life? If she has
not disposed of it, does it pass at her death with the rest
of the property, or does it pass as her separate property to
her own heirs? In Isri But v. Hansbutti, the Judicial
Committee considered that “a widow’s savings from her
husband’s estate are not her stridhan. If she has made no
attempt to dispose of them m her lifetime, there is no dispute
but that they follow the estate from which they arose. The
dispute arises when the widow, who might have spent the
income as it accrued, has in fact saved it, and afterwards
attempts to alienate it” (A). The decision appears to have
proceeded either upon some concession that income undisposed
of must follow the estate from which it arose or it must be
treated as a decision on a question of fact. For, in the subse-
quent decision in Sowdaminee Dossee v. The Administrator-
General where the corpus of the estate never came to the widow
and there was therefore no room for any presumption that the
income of the estate went with it, the Judicial Committee made

(g) Sowdaminee Dossee v. The Admr. Gent, of Bengal (1893) 20

I. A., 12, 20 Cal., 433; Ra]a Parthasarathy v. Raja Venkatadri (1923)
46 Mad., 190, 220 FB., Ayisvaryanandaji v. Sivaji (1926) 49 Mad., 116,
135, 151; Kailasanatha v. Vadivanm (1935) 58 Mad., ^8, 495, 496.

(A) Soorjeemoney Dossee v. Denobundo Mullick (1862) 9 M.I.A.,
123, approved in Isn Dut v. Hansbutti (1884) 10 I.A., 150, 159, 10
Cal., 324. The decision in Grose v. Amirtamayi Dasi (1870) 4 B.L.R.
(O.CJ.), 1 is no longer law being at variance with the decision
in 9 M.I.A., 123 supra,

ii) Isn Dut V. Hansbutti (1883) 10 I.A., 150, 10 Cal., 324 (held
part of husband’s estate) ; Sheo Lochun v. Saheb Singh (1887) 14

J. A., 63, 14 Cal., 387 (held part of husband’s estate) , Nabakishore
Mandal v. IJpendra Kishore (1922) 42 M L.J., 253 P.C ; Srulhar Chatto-
padhyaya v. Kalipada (1911) 16 C W.N , 106.

(y) Ante §639

ik) (1883) 10 LA., 150, 158, 10 Cal., 324, 335.

PARA. 640.] RIGHT TO INCOME AND SAVINGS.

773

it clear that the income a woman receives from her husband’s
estate is her absolute property. Their Lordships observed;
“It was said she had placed it in investments of a permanent
nature. Had she done so, it does not appear to their Lordships
that this circumstance alone would have added the fund to the
estate devolving on her husband’s heir” (/). In Venkatadri
Appa Rao v. Parthasarathi Appa RaOt the widow never obtained
actual possession of the income to which she was entitled and
the question arose as to whether she was entitled to dispose of
it by will. Their Lordships observed: “That income or any
part of it, she could, while she remained entitled to it, have
added as an accretion to the Medur estate if she had wished
to do so. There is no evidence to suggest that she had ever
added any part of that income as an accretion to the Medur
estate. She was consequently entitled to dispose of it by will
or otherwise” (m). In Kailasanatha v. VadivannU the Madras
High Court, on a review of all the cases, held that purchases
made out of the income of her mother’s stridhana inherited
by a daughter, are the latter’s stridhana devolving on her
own heirs (n). The Court also expressed the view that
when a widow who can dispose of her accumulated income
by will dies intestate, the surplus amounts must be treated
as her absolute property for purposes of devolution as
well (o). In Navaneethakrishna Marudappa Thevar v. CoU
lector of Tinnevelly, the Madras High Court, following the
two decisions of the Privy Council cited above, held as well
established that the income of a woman’s estate remains at her
disposal in the absence of anything done by her to show
that she treated the accumulation as part of the last male
holder’s estate (p). The Privy Council, affirming that
decision, held that both the savings which were in the hands
of the Court of Wards and the money which was in the widow’s
own possession were the personal property of the Rani and
would pass under her will (^).

(/) (1892) 20 I.A., 12 , 24, 20 Cal., 433.

im) (1925) 52 I.A., 214, 225, 48 Mad., 312, affg. 46 Mad., 190 F.B.

in) (1935) 58 Mad., 488; see also Dulhin Parbati Kuer v. Baijnath
(1935) 14 Pat., 518.

(o) (1935) 58 Mad.. 488, 504.

(p) (1935) 69 M.L.J., 632, 644, 'husband’s estate" is a slip for
‘son’s estate*, as the Rani succeeded on her adopted son’s death.

( 9 ) Balasubramanya v. Subbayya (1938) 65 I. A., 93, 104, 42
C.W.N., 449; Nabakishore Mandal v. Upendra Kishore (1922) 42
M.L.J., 253 P.C., 1922 M.W.N., 95 was only a decision on the facts
of that case and was treated both in (1935) 69 M.L.J., 632 supra and
in (1935) 58 Mad., 488 supra, as not laying down any general principle.
As the Privy Council have affirmed the decision in (1935) 69
632 supra, they must have taken the same yjew^

774

woman’s estate.

[chap. XVII,

Intention,
the test of
accretion.

§ 641. Where nothing more appears than that a widow
effected savings from the income of her husband’s property,
and with those savings acquired other property, the presump-
tion is that it is not an accretion to the original estate. In
a case decided in 1901, the Madras High Court, in deciding
that there could be no presumption that it is an accretion,
gave the following reason: “The acquirer of property
presumably intends to retain dominion over it, and
in the case of a Hindu widow the piesumption is none
the less so when the fund with which the property is
acquired is one which, though derived from her husband’s
property, was at her absolute disposal In the case of
property inherited from the husband, it is not by reason of her
intention but by reason of the limited nature of a widow’s
estate under the Hindu Law, that she has only a limited power
of disposition But her absolute power of disposition over the
income derived from such limited estate being now fullv
recoemised, it is only reasonable that, in the absence of an
indication of her intention to the contrary, she must be pre-
sumed to retain the same control ovei the investment of such
income. The mere fact that properties thus acquired bv her
are managed and enjoyed by her without any distinction,
along with properties inherited from her husband, can in no
way affect this presumption. She is the sole and separate
owner of the two sets of properties so long as she enjoys the
same, and is absolutely entitled to the income derived from
both sets of properties ’’(i ) This view was approved bv
Subramania Iyer, 0 C J. in Subramanian v. Arunachelam ( 5 ),
by another Bench in Ayiswaryanandaji v. Sivaji f^), by the
Allahabad High Court in Bharosa Shukul v. Manhasi Kuer (u) ,

(r) Akkanna v V enkayya (1902) 25 Mad, 351, 359, 360 it is not
analogous to the case of an undivided membei of a Hindu family who,
by throwing into the common stock his separate property, makes it the
joint family property, nor is it analogous to the case of a father or
managing member making purchases from the profits of the joint
estate as in such profits all coparceners are equally interested, Rama-
krishna v Rakmavathi (1920) 11 MLW, 112 “There is no presump-
tion that properties purchased by her out of such income are accre-
tions to the estate”, Nirmala v Deva Narayan (1928) 55 Cal, 269,
Mt Malan v Kishore Chand A.T R. 1923 Lah , 17, Wahid Ah v. Ton
Ram (1913) 35 All. 551.

( 5 ) (1905) 28 Mad.. 1 F.B.

(0 (1926) 49 Mad.. 116.

iu) (1932) 54 All.. 1014.

PARA. 641.]

ACCRETIONS TO ESTATE.

775

and by the Bombay High Court in Keshav v. Maruti {v)\
The same view is taken by the Patna High Court (r^). In
Raja of Ramnad v. Sundara Pandiyasami, Lord Phillimore
observed: “A widow may so deal with the income of her
husband’s estate as to make it an accretion to the corpus. It
may be that the presumption is the other way. A case has
been cited to their Lordships which seems so to say {w) , But
at the outside it is a presumption and it is a question of fact
to be determined, if there is any dispute, whether a widow
has or has not so dealt with her property” (^r).

The intention of the widow or other limited owner to make
her savings or purchases part of her husband’s estate can be
evidenced by any unambiguous act or declaration on her part.
The conduct of the widow in dealing with the income affords
the best evidence of her intention (y ) . The erection of a
building upon land belonging to the husband’s estate (z), the
purchase of a share of land in which the husband had already
held other shares (a), the investment of moneys belonging to
the husband’s estate with a banker on the agreement that the
interest thereon should be added to the principal (6) and the
acquisition by the widow of tenant rights (c) would point to
an accretion. Where, in exercise of a right of pre-emption
vested in her in hex husband’s right, property was acquired
without detriment to the husband’s estate and with the aid of
borrowed money, it was held that it was open to the widow

(v) (1922) 46 Bom, 37. See Sarnam v. Raja Bisheswar (1930)
5 Luck., 608, A.I.R. 1931 Oudh, 66; Pahlad Maharaj v. Gawri Dull
A.I.R. 1937 Pat., 619, Mt. Malan v Kishore Chand A I.R. 1923 Lah.,
17, 19* The decisions m Sarat Chandra v. Charusda (1928) 55 Cal.,
918 and in Subbamma v. Venkat Krishna A,I.R. 1925 Mad., 151 are
not good law, a later decision of the Calcutta High Court m Bankim
Behary v. Prabodh Chandra A.l R. 1934 Cal., 284 has followed (1905)
28 Mad ,1 (F B ) supra.

(t;i) Dulhin Parbati v. Baijnath Prasad (1935) 14 Pat., 518.

{w) The reference is to (1902) 25 Mad., 351 supra.

ix) (1919) 46 I. A., 64, 42 Mad., 581, 588.

(y) Nirmala Sundari v. Deva Narayan (1928 ) 55 Cal., 269 (pro-
perty purchased benami in the name of another evidences an intention
to keep It separate).

iz) Raja V enkatanarasimha v. Raja Suraneni (1908) 31 Mad., 321.

{a) Kulachandra v. Bamasundari (1914) 41 Cal., 870; Sheo

Lochun V. Sahebsingh (1887) 14 I.A., 63, 14 Cal., 387; (1883) 10
I.A , 150, 10 Cal., 324 supra, Jagarnath v. Suraj Deo A.I.R. 1937
Pat., 483. See Mt. Tehl Kiiar v. Amar Nath A.I.R. 1925 Lah., 2.

(6) Narayanan Chetty v. Suppiah (1920) 43 Mad., 629.

(c) Nabakishore v. Vpendrakishore (1923) 37 C.L.J., 319, 42

M.L.T, 2.53 PC., A I.R. 1923 Cal., 563; Ram Shanker v. Lai Bahadur
(1926) 1 Lurk., 98, A.I.R. 1926 Oudh, 277.

Evidence of
intention.

776

Express
power of
disposal.

Devise or
grant.

woman's estate. [chap. XVII,

to deal with it as she liked (d). A sum of money represent-
ing rents accrued during the last year of the widow’s life
was held to pass to the widow’s representatives and not to the
reversioner (d^). It must now be taken that all the surplus
income of the estate, whether invested by the widow or not
during her lifetime, belongs to her absolutely so as to be
alienable by her (e). Where any property is given to a
woman for her life, the income and any purchase made with
it are her absolute property (/) . In Phool Kunwar v. Rikhi
Ram, it was rightly held that the income of the husband’s estate
is liable to be attached in execution of a decree against the
husband, a question quite different from the one that arises
between her legal representatives and her reversioners (g ) . For,
as between herself and the reversioner, she is not bound to
discharge the principal of her husband’s debt out of the
income (A) .

§ 642. None of the restrictions discussed in connection
with a widow’s estate apply to property which has passed
to a female, not as heir, but by deed or other arrangement
which expressly or impliedly empowers her to appropriate the
profits. The savings of such propeity, and everything which is
pui chased out of such savings, belong absolutely to herself.
They may be disposed of by herself at her pleasure, and, at
her death, they pass to her representatives, and not to the
heirs of the last male ii). But the mere fact that a Hindu
female takes under a will or a deed of gift or arrangement,
that to which she is really entitled as heiress, does not neces-
sarily enlarge her powers. The question will still be, what
estate was she intended to take? It will be a

(d) Sri Ram Jankiji v Jagadamba (1921) 43 All, 374 FB , Mahna
Singh V Thaman Singh (1931) 11 Lah , 393

Rivett Cainac v Jivibai (1886) 10 Bom, 478, 483; see
Sarnam v Raja Bisheshwar AIR, 1931 Oudh, 66, 5 Luck , 608 The
decision in Bharateswari Dasi v. Bhogaban Chandra (1928) 33 C.W.N ,
193 IS not good law, being opposed to (1925) 52 I A., 214, 48 Mad.,
312 injra

(e) Venkatadri Appa Rao v Parthasarathi Appa Rao (1925) 52
I A., 214, 48 Mad., 312.

(/) Mohinee Mohun Basu v Rash Behary Chose 119371 2 Cal.,
97, Srimati Krishna v. Bhaiya Rajendra 2 Luck., 43, A.T.R 1927 Oudh,
240.

(g) (1935) 57 All., 714, disapproving Rani Kanno Dai B J
Lacy (1897) 19 All, 235.

{h) Ramaswami v. Mangaikaresi (1895) 18 Mad., 113; V irnbadnt
V Marudaga (1911) 34 Mad, 188, 192, Jagannadha v V ignaneswaradii
(1932) 55 Mad.. 216

(i) Bhagbutti V Chowdhry Bholanath (1875) 2 I.A., 256; Guru v.
Nafar (1869) 3 B.L.R. (A.CJ.), 121, Nellaikumaru v. Marakathamrrud
(1876) 1 Mad., 166.

PARA. 642.]

ESTATE TAKEN UNDER GRANT.

777

question of construction in each case depending tipon
the language of the document and the surrounding
circumstances (/) . An estate given to a widow of an undivided
family by way of maintenance lapses into the family property
at her death (A), but not if it was an absolute grant in full
satisfaction of the claim to maintenance (/). Where in com-
promise of a claim made by a Hindu widow in respect of her Under
husband’s estate with coparceners or reversioners, property compromise,
was given to her, the fact that she claimed it as the widow would
not cut down the estate to a life estate, if on the construction
of the document or having regard to surrounding circum-
stances, the intention was to give her an absolute estate (/^).

But the compromise by which she purported to acquire a
larger interest would not bind the actual reversioners unless they
were parties to it, or unless the persons with whom she enter-
ed into a compromise were entitled to the property and had
not merely a spes successionis (/-). Where all that appears
is that there was merely a settlement between several mem-
bers of a family of their disputes and there was no intention
to confer a new title on one party or the other, the compro-
mise or settlement, in the absence of express words giving
a larger interest, will be construed as only acknowledging
and defining the antecedent title which it recognised (P).

Where a personal inam held by the husband was enfran-
chised in favour of the widow, the grant of the inam title-deed Grants
to her will not constitute the property, her absolute pro-
perty (/^). But it is otherwise as to service inam lands which
are enfranchised in favour of the widow or daughter of a

( j) Moulvie Mahomed Shumsool v. Shewukram (1874) 2 I A , 7 ; (1875)
2 I.A , 256, 261 supra, explaining the decision in Rabutty v.
Sihchunder (1854) 6 M I.A., 1, Nathu\, Babu Ram (1935) 63 I A., 155,
Lakshmibai v. Hirabai (1887) 11 Bom., 69, affd., p, 573; Ganpat Rao v.
Ramchander (1889) 11 All., 296; Nunnu Meah v. Knshnasami (1891)
14 Mad, 274; Kunhacha v. Kutti Mammi (1893) 16 Mad., 201.

(k) Dhup Nath v. Ram Charitra (1932) 54 All., 366.

(/) Sri Raja Venkata v. Sri Raja Rao (1894) 17 Mad., 150, 156;
Ramachandra v. V ijayaragavulu (1908) 31 Mad., 349.

(/i) Sambasiva Ayyar v. Venkataswara Ayyar (1908 ) 31 Mad., 179,
Nathu Lai v. Babu Ram (1935) 63 I.A., 155, 167-8, 40 C.W.N., 481.

(/-*) (1935) 63 LA.. 155, 168.

(/•"') Ram Mewa Kuwar v. Rani Hulas Kuwar (1874) 1 I A., 157,
166; Khunni Lai v. Gobind Krishna (1911) 38 I.A., 87, 102, 33 All.,
356, but see Lekhraj Kunwar v. Harpal Singh (1912) 34 All., 65 P.C.,
where the compromise was construed to create an independent title.

(Z'*) Narayana v. Chengalamma (1887) 10 Mad., 1; V angola v.
Vangala (1906) 28 Mad., 13; Kashi Prasad v, Inda Kunwar (1908)
30 All., 490,

778

Powers of
alienation.

Movables

woman's estate. [chap, xvn,

deceased holder in which case the grantee becomes an absolute
owner {m) .

§ 643. The pui poses which authorise a Hindu woman to
mortgage, sell, or otherwise alienate, in whole or in part, the
estate inherited by her, are stated by the Judicial Committee
partly in the passage alieady quoted from Collectoi of
Masulipatam v. Cavaly Vencata and paitly in Hunoornan
PersaucTs case, the principles of which have been applied to
women holding a limited interest (§§ 361, 362) (n). A widow
or othei female limited owner has therefore a power of aliena-
tion only (1) for religious or charitable purposes or those
which are supposed to conduce to the spiritual welfare of her
husband; (2) for other purposes when they amount to what
is termed ‘legal necessity’ (o) and (3) for the benefit of the
estate fo^). A widow oi other limited owner has a
larger power of disposition for religious and pious
purposes than for purely worldly purposes. To support an
alienation for the latter, there must be necessity (p). These
lestrictions on her power apply in all the provinces whether
the property inherited by her was the self-acquired or anceslial
propel ly of the last male ownei and whether it be immovable
or movable. According to the Mithila School a
widow, however, has absolute poweis of disposition over her
husband’s movables which she inherits. It is her stridhana
and descends as such iq). In Bombay, in cases governed by
the Mayukha, a widow has an absolute powei of disposal over
movables inherited by her or allotted to her on a partition
with her son, by sale, gift, or other alienation inter vivos, but
not by will. Of course, on hei death, the property descends

(m) Venkata v. Virabadrayya (1921) 48 I A , 244, 44 Mad., 643;
Palaniyandi v Velayudhan (1929) 52 Mad, 6

in) (1861) 8 MIA, 529, (1856) 6 M.I.A , 393, ante §638

(0) Bhugwandeen y Myna Baee {]S67) 11 M I. A , 487, Lala Amarnath

V Achan Kuar (1892) 19 I A , 196, 14 All.. 420, Sham Sundar v.
Achhan Kunwar (1898) 25 I A , 183, 191, 21 All, 71, Bijoy Gopal v
Krishna Mahishi (1907) 34 I A , 87, 34 Cal, 329, Obala Kondama v
Kandasami Gounden (1924) 51 lA, 145, 152, 47 Mad, 181, Bijoy
Gopal V Girindranath (1914) 41 Cal, 793 PC, Buchi Ramayya v
Jagapathi (1885) 8 Mad, 304, Narasimha v Venkatadn (1885) 8
Mad, 290, Durganath v Chintamoni (1904) 31 Cal, 214, Gadadhar

V Chandrabagabai (1893) 17 Bom, 690 FB., Jagdeo Singh v. Mt. Raja
Kuer (1927) 6 Pat, 788, Ram Sumran v Shyam Kumari (1921) 49
I.A , 342. 1 Pat , 741. 745

(01) Bhushana Rao v Siibbayya AIR 1936 PC, 283

(p) (1861) 8 MIA., 529, 551 supra. Raja Luhhee v. Gohool
Chunder (1869) 13 M.I A., 209

{q) Sureshwar v. Maheshrani (1921) 47 I.A, 233, 238, 48 Cal.,
100; Latur Rai v, Bhagwan Das A I.R. 1936 Pat , 80, Jagarnath
Prasad v. Siiraj Deo Naram A.I R. 1937 Pat., 483.

PARAS. 643-644.] ALIENATION FOR RELIGIOUS PURPOSES.

779

to the heirs of the last full owner and not as her stridhana (r).
Now, under the Hindu Women’s Rights to Property Act, 1937,
in these two cases as well as in the case of Jain or other
widows who by custom may have absolute rights, their estates
would seem to be only the ordinary limited interest of a
Hindu woman (§591).

§ 644. The principles applicable to a Hindu widow’s or
other female owner’s alienation for religious purposes have
been laid down in a number of cases (5). In Sardar Singh v.
Kunj Behari Lai, a Hindu widow made a gift of immovable
property, about one-seventy-fifth of the whole estate, for food
offerings to a deity and for the maintenance of the priests of
the temple, though she had sufficient income to provide for
them without alienating any part of the corpus. It was held
by the Judicial Committee, affirming the judgment of the
Allahabad High Court, that the alienation was valid as the
gift was for the spiritual benefit of hei husband (though it was
not an obligatory purpose) and as the property alienated was
but a small fraction of the whole estate. Their Lordships
obseived, “There can be no doubt upon a review of the
Hindu law, taken in conjunction with the decided cases, that
the Hindu system recognizes two sets of religious acts. One
is in connection with the actual obsequies of the deceased, and
the periodical performance of the obsequial rites prescribed
in the Hindu religious law, which are considered as essential

(r) Bechar v. Bai Lakshmi (1863) 1 Bom. H.C., 56; Dewcoover^
baeeb case (1859) 1 Bom. H.C., 130, Bhagirathibai v. Kahnuji Rao
(1887) 11 Bom., 285 F.B.; Gadadhar v. Chandrabagabai (1893) 17
Bom., 690 F.B , Chamanlal v. Doshi Ganesh (1904) 28 Bom., 453;
Chamanlal v. Bai Parvati (1934) 58 Bom., 246. In Pandhan-

nath V Govind (1908) 32 Bom, 59, a Mitakshara case,

iL was held that a widow has no greater powers over movables than
over immovables In Allahabad and Calcutta, a custom is recognised
by which a childless Jain widow acquires an absolute right in her
husband’s property, whether ancestral or self-acquired: Harnabh v.
Mandil (1900) 27 Cal, 379, Shea Singh v. Dakho (1878) 5 I.A., 87,
1 All., 688, Shimbu Nath v Gayan Chand (1894) 16 All., 379, Hukum
Chand v. Sital Prasad (1928) .50 All., 232. In Bombay, a Jam widow
has absolute power to deal only with the self-acquired movable property
of her husband, but not with self-acquired immovables nor with

ancestral property. It was also held in that case that the right of

a Jain mother to deal with property inherited from her son was not

made out. Bhikabai v. Manilal (1930) 54 Bom., 780, 796.

(a) Khnb Lai Singhy, Ajodhya Misser (1915) 43 Cal, 574; Venkata
Subba Rao v. Ananda Rao (1934) 57 Mad., 772, 774; Madan Mohun v.
Rakhal Chandra (1930) 57 Cal., 570; Panachand v. Mancharlal (1918)
42 Bom., 136; Tatayya v. Ramaknshnamma (1911) 34 Mad., 288; Ram
Surat v. Hitanandan (1931) 10 Pat., 474; Radha Madhab v. Rajendra
Prasad (1933) 12 Pat., 727, 743; See Vyav. Chand., I, 135, 138. “It is
impossible to define the extent and limit of the power of the widow to
dispose for religious purposes”: per Lord Giffard in Cossinaut v.
Hurrosoondry 2 M. Dig., 197.

Alienation for

religious

purposes.

Two sets of

religious

acts.

780

woman's estate.

[chap. XVII,

for the salvation of the soul of the deceased. The other relates
to acts which, although not essential or obligatory, are still
pious observances which conduce to the bliss of the deceased’s
soul. In the later cases, this distinction runs clearly through
the views of the learned judges.” “With reference to the first
class of acts, the powers of the Hindu female who holds the
property are wider than in respect of the acts which are
simply pious and if performed are meritorious so far as thev
conduce to the spiritual benefit of the deceased. In the one case,
if the income of the properly, or the property itself, is not
sufficient to cover the expenses, she is entitled to sell the whole
of it. In the other case she can alienate a small portion of
the property for the pious or charitable purpose she may have
in view” (/). The primary religious purpose which a widow
is bound to carry out at any expense to the estate is the
performance of the funeral obsequies of her husband and the
periodical performance of the obsequial rites enjoined by the
religious law (u). These are spiritual necessities. There are
other religious benefits procurable for him the securing of
which is of an optional character Such religious purposes
include a portion to a daughter, building temples or the
installation of idols for religious worship, digging tanks and
the like (i?).

An alienation by a widow for the performance of her
husband’s mother’s sraddha is valid (m;). A daughter’s aliena-
tion for the expenses of her mother’s sraddha is also valid (rv).
A gift made by a daughter in connection with the performance
of her father’s sraddha has been upheld (j). An alienation for
the expenses of the excavation and consecration of a tank by a
widow has been upheld as a religious and charitable purpose

it) (1922) 49 I A, 383, 391, 44 AIL, 503 affg. 41 AIL, 130 and
approving Tatayya v. Ramakrishnamma (1911) 34 Mad., 288 and the
judgment of Mookerjee, J, in Khub Lai v Ajodhya (1916) 43 Cal., 574.

(u) Latur Rai v Bhagwandas A.I.R. 1936 Pat, 80; Ratanchand v.
Javherchand (1898) 22 Bom, 818; Lakshminarayana v. Dasu (1888)
11 Mad, 288, Srimohan v. Brij Behary (1909) 36 CaL, 753 approving
Raj Chunder v. Sheeshoo 7 W.R , 146.

iv) The Mitakshara ^ays “Moreover, if the word sacrifice import
religious duty in general, the succession of women to estates is most
proper, since they are competent to the performance of auspicious and
conservatory acts as the making of a pool or a garden.” Mit , II, i, 24.
Futwah in Cossinaut v Hurrosoondry cited in Vyav Darp., 101.

iw) Chowdry Junmejoy v Russomoyee 11 B.L R , 418; Tatayya v.
Ramakrishnamma (1911) 34 Mad., 288, 291.

(x) Srimohun v. Brijhehary (1909) 36 Cal, 753, Nahinchandra
v. Sm Shona Mala (1930) 35 C W.N , 279; Raj Chunder v. Sheshoo 7

W R., 146.

(y) (1911) 34 Mad., 288, 291 supra.

PARAS. 644-645.] alienation Eor Religious purposes.

781

conducive to the spiritual welfare of her husband (z) . An
alienation for the debts contracted for defraying the expenses
of the thread and marriage ceremonies of one of her daughter’s
sons by a widow has been held valid (o) .

§ 645. Pilgrimages and sacrifices performed by a widow Pilgrimages
are pious acts conducive to the spiritual welfare of her husband
provided the expenditure is within reasonable limits (6). It
has been held in some cases that a widow is not authorised
to sell her husband’s property for pious and religious purposes
intended to secure her own spiritual welfare (c) . But the
distinction between acts of which the religious benefit is solelv
acquired by the female heir and acts of which the religious
merit accrues to the deceased or is shared by her
with him cannot be sustained in the case of the widow,

(z) Khublal v. Ajodhya Misser (1915) 43 Cal., 574; Ram Surat
V. Hitanandan (1931) 10 Pat., 474; Knshnamurthi v. Lingayya

A. l.R. 1936 Mad., 677 (gift of one-sixth of the estate for building

temple for her husband’s and hei own salvation valid) ; Gobind v.
Lakshmi (1921) 43 All., 515 (gift of about 1|11 to husband’s purohit
on the widow’s return from pilgi image to Gaya, valid) ; Makhan
Lai V. Gay an Singh (1911) 33 All, 255 (alienation for a feast given
on return from a pilgrimage was held invalid) ; tiai Chanchal v. Chiman-
lal Chunilal A.l.K. 1928 Bom., 238 (pilgrimages commendable but not
absolutely necessary — invalid) ; Indar Bux v. Sheo Naresh (1927)
2 Luck., 713; A.I.R. 1927 Oudh, 450 (gift of 1|55 share, valid);

Baldeo Prasad v. Fateh Singh (1924) 46 All., 533 (gift of small

portion) ; Panachand v. Manoharlal (1918) 42 Bom., 136 (gift of con-
siderable portion — ^invalid) , Radha Madhab v. Rajendra (1933)
12 Pat., 727 (gift of 1|3 — invalid) ; Ishwari v. Babunandan (1925)
47 AIL, 563, 57 i (gift to priest being considerable — invalid).

(fl) Venkatasubba Rao v. Ananda Rao (1934) 57 Mad., 772, re-
versing (1929) 58 M.L.J., 127 and approving Mallayya v, Bapireddi
(1932) 62 M.L.J., 39; Rustam Singh v. Moti Singh (1896) 18 All.,
474 (woman can mortgage her father’s estate to meet expenses of her
daughter’s marriage if her husband is too poor) ; Nurainbati v. Ram-
dhan (1916) 20 C.W.N., 734 (no obligation to marry daughter’s
daughter), but see Ramcoomar v. Ichamoyi (1881) 6 Cal., 36; Jai

Ram v. Bhagat Ram A.I.R. 1935 Lah., 440 (legal and moral obligation

to marry daughter’s daughter).

(6) Rama v. Ranga (1885) 8 Mad., 552; Muteeram v. Gopal 11

B. L.R., 416; Bar ban Lal v. Gobind (1924) 46 All., 822; Ganpat v.
Tulsiram (1912) 36 Bom., 88. In Han v. Bajrang (1909) 13 C.W.N.,
544, 547, It was said that a pilgrimage to Benares was not a necessity
but It was a proper and pious act; sec also Bai Chanchal v. Chiman
Lal A.I.R. 1928 Bom.. 238.

(c) Puran Dai v. Jai Narain (1882) 4 All., 482; Ram Kawal v. Ram
Kishore (1895) 22 Cal., 506; Bishen Dayal v. Mt, Jaisan Kuer A.l.R.
1918 Pat., 323, 48 I.C., 746; Sham Dei v. Birbadra (1921) 43 All., 463;
Munshi Lal v. Shiv Devi (1923) 4 Lah., 336; Har Mitra v. Raghubar
A.l.R. 1928 Oudh, 342, 3 Luck., 645; Thakur Prasad v. Mt. Dipa Kuer
(1931) 10 Pat., 352. Though some of these decisions can be supported
on the ground that the alienations were not within proper limits or
in accord with the common notions of Hindus, they cannot be sup-
ported on the view that they were only concerned with the spiritual
welfan* of the widow which is inseparable from her husband’s spiritual
welfare. A gift of property to an educational institution fails, as this
would not be a religious purpose under Hindu law: Sohanlal v«
Bhagwati A.l.R. 1936 All., 205.

WoMAN^S estate.

tcHAP. X\iU

whether or not it ib valid in the case of the daughtei or the
mother: foi the wife is associated in all the leligious offerings
and rituals with the husband and this mutual relation is not
dissolved by the death of either (d). Bnhaspati says. “In
Sciipture and in the Code of law, as well as in popular
practice, a wife is declared by the wise to be half the body of
her husband equally sharing the fruit of good and evil
acts”(e). On this point, the true principle is stated by
Mookerjee J. in Khiib Lai v Ajodhya Misser (/), by Dhavle J.
in Thakur Prasad v. Mt Dipa Kiiet (g), and by Venkata-
idinana Rao J. m Ptabhala Krishnaniurthi v. Vallun
Lingayya (/i).

Husband’s § 64(3. The obligation of a widow taking hei husband’s

property to pay his debts has been held to be a pious duty
coming under the head of religious beneht Of course there
could be no such duty wheie the debts were contracted for
immoral purposes or where they weie repudiated by the
husband during his lifetime (i). It was formeily held

Barred debts. that where the debts weie already bailed by lapse of time, she
could not buiden oi dispose of the estate foi their discharge (/)
and this is certainly the law as legards an ordinary
manager of the family (A:). This seems sensible enough as
d matter of mundane equity, though it may be doubted whether
a plea of the statute would be accepted m the Court ot the
Hindu Rhadamanthus (/) In moie recent cases it has been
lepeatedly held that a widow’s obligation to pay her husband’s
debts, and her right to alienate the piopeity which she in-
herited fiom him die not affected bv the statute of limitations

(d) Mdiiu, IX, 96, Daydbhdga, XI, 1, 4341.

(e) Brih., XXV, 46.

(/) (1916) 43 Cal.. 574, 582.
ig) (1931) 10 Pat., 352.

(A) A.I.R. 1936 Mad., 677.

(/) Chetty Coluni v Rungasivamy (1859) 8 M I.A., 319, Jayantt
Subbiah V Alamelu Mangamma (1904) 27 Mad., 45, Bhagwat v.
Nivratti (1915) 39 Bom, 113 (debt repudiated by husband), Bajrang
bingh V. Govind A I.R. 1935 Oudh, 373 (a minor’s debt).

(;) Melgirappa v Shivappa (1869) 6 Bom HC (A.CJ), 270.

(A) Chintiayya v. Curunathan (1882) 5 Mad, 169 F B. See ante
§310 A.

(/) Cued with appiovdl in Ashutosh v. Chulani (1930) 57 Cal.,
904, Daroga Rai v. Basdeo (1937) 16 Pat., 45, 50.

PARAS. 646-64ii.j ACKNOWLKDGMENf OP btRT. 78^

or any similar contrivance for getting rid of his obliga-
tions (m).

§ 647. The Privy Council decided in Soni Ram v.

Kanhaiya Lai (n) that the widow could not acknowledge her Acknowledg-
husband's debt so as to bind the estate. This would lead to ment of debt,
the logical conclusion that she cannot pay a barred debt so as
to bind the reversioners (o). Now section 21 (3) (a) of the
Indian Limitation Act, 1908, as amended by Act I of 1927
makes an acknowledgment or payment made in respect of any
liability by a widow or other limited owner, valid as against
the reversioners.

§ 648. Payment, out of her own moneys, by a
Hindu wife of her husband's debts during his life-time
must, in the absence of evidence to the contrary, be
considered as a voluntary payment which will not
support her alienation after her husband’s death of proper-
ties descended to hei from him ip). The Allahabad High
Court has held that a Hindu mother succeeding to her son’s Other debts,
estate cannot validly alienate a pait of that estate to pay off
time-barred debts of her husband which were not charged on
the estate, though her son might be under a pious obligation
to pay them {q). Whatever may be the case as regards the
widow’s pious duty to pay her husband’s barred debts, the
liability of any limited owner including the widow, to pay the
debts of the last full owner which are not barred is obviously a
legal necessity and a worldly purpose. This would seem to
be the effect of the decision in Bhushana Rao v. Subbayya:

(m) Bhala v. Parbii (1878) 2 Bom., 67; Chimnaji v. Dinkar
(1887) 11 Bom., 320; Bhau BabajL v. Gopala (1887) 11 Bom., 325
(where the same principle was applied to a widowed daughter-in-law
who was in possession of the estate of her father-in-law) ; Kondappa
V Subba (1890) 13 Mad., 189; Udai Chunder v. Ashutosh (1893) 21
Cal., 190, Gaun Sankar v. Sheonandan (1924) 46 All., 384, 388,
Gajadhar v Jagannath (1924) 46 All., 775, 785 F.B.; Gaun Shankar
V. Kamla Prasad A.I.R. 1926 All., 645; Santa Ram v. Mt. Dodam Bat
(1928) 9 Lah., 85; Tulshi Prasad v. Jagmohan Lai A.l.R. 1934 All.,
1048. The widow need not pay the principal amount of the debt out of
her income. Ramaswami v. Mangaikarasu (1895) 18 Mad., 113; Debi
Dayal v. Bhau Pratap (1904) 31 Cal., 433; Jagannadham v.

Vighnesvarudu (1932) 55 Mad., 216, §639.

in) (1913) 40 I. A., 74, 35 All., 227 affirming (1910) 32 All., 33.

(o) On the question whether a widow or other limited owner is
entitled to acknowledge her husband’s debt so as to bind the estate,
the Privy Council held the contrary observing that to hold otherwise
would be “to extend the power of a Hindu woman in possession of
her limited interest to bind the estate to an extent which has not been
sanctioned by authority.”

(p) Bhawani v. Hunmut (1911) 33 All., 342 P.C., affirming (1908)
30 All., 352.

{q) Sheo Ram v< Sheo Ratan (1921) 43 All., 604.

WOMAN^S ESTATE.

[chap, xvn,

784 •

‘'The power of a Hindu widow to alienate the estate inherited
by her for purposes other than religious or charitable is
analogous to that of a manager of an infant’s estate, as des-
cribed in 6 M.I.A., 393. She can alienate it, not only for
legal necessity, but also for the benefit of the estate”. In
this case, the circumstances of necessity justifying the aliena-
tion were considered before the mortgage was upheld (/).

Payment
must be
bona fide.

Payment of the debts, however, must be made bona fide in
discharge of the duty of the widow to pay all her husband’s
debts equally as far as she can. She must act fairly to all
the creditors as a body and not unduly piefcr any one of
them (5).

Maintenance
marriage
expenses
and gifts.

§ 619. As a female heir is bound to maintain the other
members of the family and perform their marriages and
other ceremonies, she may mortgage 01 sell the property to
procuie the necessaiy funds (0* ^ fortiori, of course,

she may do so to procure maintenance for herself, or
to defray the expense of her own religious ceremonies (u).
As a qualified owner is entitled under Hindu law to do all
reasonable and proper acts which are incidental to a marriage,
a gift to a daughter on the occasion of her marriage or the
gowna ceremony and a gift to a son-in-law on the occasion

(r) AJ.R. 1936 P.C. 283, 41 C.W N., 18. See also Awacih Narain
V. Santan Narain AIR 1937 Pat., 325.

( 5 ) Rangilbhai v. Vinayak (1887) 11 Bom, 666

(r) Debi Dayal v. Bhan Pertab (1904) 31 Cal, 433, 441, Ram-
coornar v. Ichamoyi (1881) 6 Cal, 36, Ganpat Valad v Tulsiram
(1912) 36 Bom, 88, Makhan Lai v. Gayan Singh (1911)
33 All, 255, but not for the marriage of a daughter’s daughter,
Narainbati v. Ramdhari Singh (1916) 1 Pat. LJ, 81, 20 C.W N , 734,
but see Jai Ram v. Bhagat Ram A.I.R. 1935 Lah., 440, Rustam Singh
V. Moti Singh (1896) 18 All , 474 (marriage of a daughter by the
daughter who inherited her father's estate) , fin; Mohan v. Mt. Racchpal
A.I.R. 1933 Oudh, 426 (marriage of unmarried daughter and sister
of deceased, necessary, gift of Vi of the estate to son in-law — valid).
Sailabala Deb v. Baikuntha A.I.R. 1926 Cal., 486 (maintenance
of husband s widowed sister is a legal necessity — gift to son-in-law on
occasion of daughter’s marriage not restricted to ^/4). Bhagwati Shukul
V. Ram Jatan (1923) 45 All, 297 (daughter’s alienation for her son’s
marriage — valid) , Ram Sumran v. Gobind Das (1926) 5 Pat., 646
(gift of one- fortieth to son-in-law valid) , Kamla Prasad v. Lalji
Prasad (1930) 9 Pat, 721 (daughter’s marriage), Mallayya v. Bapi
Reddi (1932) 62 M.L.J., 39 (ddughter’s alienation for her son’s

marriage — valid)

(u) Sadashiv v. Dhakubai (1881) 5 Bom., 450, V enkatarazu t.
kotayya (1912) 23 M.L.J , 223 (destitute widowed daughter), Durban
Lai v. Gobind Saran (1924) 46 AIL, 822. See §§644, 645.

JPARAS. 649-651.] ALIENATION FOR NECESSITY.

785

•of the daughter’s marriage are, if reasonable in extent, within
‘her powers (v).

§ 650. These are some of the cases specially pointed out
as authorising a woman to dispose of her inheritance. Others
come under the general head of necessity (t<;). It should be Necesdty.
observed in limine that the word ‘necessity’ when used in this
•connection has a somewhat special, almost technical, meaning.

Necessity does not mean actual compulsion but the kind of
pressure which the law recognises as serious and sufficient (iv) ;
in other words, she must wait till the necessity arises. She
must not anticipate her wants by raising money or contract
for the discharge of liabilities before they arise (y ) . In order
to justify legal necessity, it must be shown that the expenses
could not have been met from the income of the property in
the widow’s hands and that they were reasonable (z) .

§ 651. Subject to the exception that she is not bound
to apply the surplus income to the payment of the principal
amount of her husband’s debts, it is only if there are no
other means available that she can alienate the properties (a).

It is of course impossible to define what is necessity. Every
•case must be judged upon its own facts. A female limited
owner cannot certainly have less power than the manager

(v) Ramasami v. V engiduswami (1898) 22 Mad, 113 (gift to son-
in-law) ; Churaman Sahu v. Gopee Sahu (1910) 37 Cal., 1 (gift on
gowna ceremony) ; Jowala Ram v. Han Kishen (1924) 5 Lah., 70
(70 out of 300 bighas on the occasion of daughter’s marriage) ; Ram
Sumran v. Gobind Das (1926) 5 Pat., 646 (gift of one-fortieth to
son-in-ldw — valid), Sailabala Baikiintha AIR. 1926 Cal, 486
(expenses of daughter’s marriage not limited to one-fourth estate) ;
Madho Prasad v. Dhan Raj Knar 1 Luck., i-77, A.l.R. 1926
Oudh, 425, Udai Dat v. Anibika Prasad A l.R. 1927 Oudh, 110, 2
Luck , 412 (alienation for daughter’s dowry valid) ; Brij Mohan v.
Racchpal A T.R. 1933 Oudh, 426 (gift to daughter).

(w) ‘The touchstone of authority is necessity.” Sham Sundar v.
Achhan Kunwar (1898) 25 I.A , 183, 191, 21 All., 71; Obala Kondama
y. Kandasami (1924) 51 I.A., 145, 152, 47 Mad., 181.

(x) Ram Sumran Prasad v. Shy am Kuman (1922) 49 I. A., 342,
346, 1 Pat., 741.

(y) Ramyad Panday v. Rambihara Pande (1919) 4 P.L.J., 734.

(z) Ravaneshwar v. Chandi Prasad (1916) 43 Cal., 417 P.C.,
affirming (1911) 38 Cal., 721. The decision in Sardar Singh v. Kunf
Behan Lai (1922) 49 I.A., 383 does not depart from this general
rule. The widow there, though the income was ample, arranged for
the perpetual performance of pious acts and therefore immovable pro-
perty had to be endowed.

(a) Ram Sumran v. Shyam Kuman (1922) 49 I. A., 342, 346,
1 Pat., 741, 745* “If there is no other available source of supply.”
Ravaneshwar v. Chandi Prasad (1911) 38 Cal., 721; Santosh Kumar
Mullpck V. Ganesh Chandra (1926) 31 C.W.N., 65, 73; Bhushana Rao
-V. Subbayya A.I.R. 1936 P.C., 283, 284.

52

786

woman’s estate.

[chap. XVIIp

Acts good
for her
own bfe.

of a family property, and does not in this respect appear
to have more (6). The principles laid down by the Privy
Council in the well-known case of Hunoomanpersaud v. Mt,
Bahooee will equally apply to her acts (c) , and to the obligation
of those who deal with her to enquire into the circumstances
which justify her dealings (fi?). But it must be remembered,
that in regal d to her alienations it is not a question of abso-
lute but of relative invalidity. She cannot, m the absence
of legal necessity, bind the inheritance for her own personal
debts or private purposes as against reversioners (e) . A
Hindu widow or other limited owner can always transfer her
life interest in the property inherited by her (/ ) . Any aliena-
tions in excess of her powers are not void, but voidable in the
sense that it is open to the reversioner to elect to abide by
them when the estate falls into his possession, either by express
ratification, or by acts done by him which treat them as valid'
and binding (g). An alienation by the limited owner when it
is not for necessity does not require to be set aside by the
reversioners. He can Ueat it as a nullity without the inter-
vention of a Court (^). As the alienation beyond her life
is invalid, the reversioner is entitled to mesne profits from

(6) bee ante §§361, 365-367.

(c) Hanoomanpersaud v, Mt Babooee (1856) 6 MIA, 393;

Kameswar v. Run Bahadur (1881) 8 I A , 8, 6 Cal, 843, Lala Amar-
nath V. Achhan Kunwar (1892) 19 I A , 196, 14 AIL, 420, Sham Sundar
V. Achhan Kunwar (1898) 25 I A , 183, 21 All, 71, iShagivat Dayal
V. Debi Dayal (1908) 35 I A , 48, 35 Cal, 420, ante §§361, 366, 371

(</) See ante §§ 366, 371

(e) Lala Byjnath v Bissen 19 W R , 80.

(/) Diirga Kunwar v Matu Mai (1913) 35 All, 311 FB , Mom-
ram Kolita v Kery Kolitani (1880) 7 I A, (146), 5 Cal, 766;
Sreeramulu v. Kristamma (1903) 26 Mad, 143, 149 overruled on
another point in Vaidvanatha v. Savitri (1918) 41 Mad., 75 F.B.;
Golandmoni v Shamlal BLR. Supp Vol., 48, Kamavadham v. Joysa
(1866) 3 Mad HC, 116; Melgirappa v. Shivappa (1869) 6 Bom H.C^
(ACJ.). 270. The same rule has been applied, even where the
widow held under a condition against alienation. Bibi Sahodra
Rai Jung (1882) 8 Cal, 224, 8 I A., 210.

(g) Modhu Sudan v Rooke (1898) 24 I.A., 164, 25 Cal, 1; Dattaji
V. Kalba (1897) 21 Bom., 749; Sitaram v. Khandou (1921) 45 Bom.,^
105, Hayes v. Harendra Narain (1904) 31 Cal., 698; Bipat v. Kulpat
(1934) 13 Pat., 182; Lilku Mahto v. Amar Mahto A.I.R. 1936 Pat,
602; Waziri v. Ganga Ram A.I R. 1924 Lah., 370; Bijoy Gopal v,
Krishna (1907 ) 34 I A., 87, 34 Cal, 329, Ramgouda Anna Gouda y.
Bhau Saheb (1928) 54 I A., 396, 52 Bom., 1; see ante §404.

{h) Bijoy Gopal v. Krishna (1907) 34 I A , 87, 34 Cal., 329; Obala
Kondama v. Kandasamy (1923) 51 I.A , 145, 152, 47 Mad., 181;
Ramgouda Annagouda v. Bhausaheb (1928) 54 I. A., 396, 52 Bom., 1-

PARAS. 651 - 652 .] ALIENATION FOR NECESSITY.

the date of her death when he becomes entitled to
possession (£).

§ 652. The decision in Hunoomanpersaud*s case shows. Existing

that if there is an actually existing necessity for an advance
« ^ 11 . ..1 , sufficient*

of money, the circumstance that this necessity is brought

about by previous mismanagement does not vitiate the loan,
unless the lender has himself been a party to the misconduct
which has produced the danger (;). And this rule has been
followed in more recent decisions. Of course it will be
necessary to show that there was an actual pressure, such as
an outstanding decree or impending sale, and one which the
heiress had no funds capable of meeting (A). One very
common case of necessity is that of a loan of money, or a
mortgage or sale of part of the property to pay off arrears
of Government revenue provided there is no other Government
available source (Z). A widow is justified in charging revenue,
or alienating her husband’s property in order to
pay the costs properly incurred in establishing her
title to It or in defending it (m), but not in a merely specu-
lative suit brought to recover property, not belonging to his

(l) Bhagwat Dayal v. Dehi Dayal (1908) 35 I.A., 48, 59, 35 Cal.,
420. “As the deeds of sale are not good as such, the claim for mesne
profits IS well-founded.” The decision to the contrary in Mohan Lai
V. Jagjivan A.I.R. 1938 Bom., 298, [19381 Bom., 292 overlooks the
Privy Council decision and cannot be regarded as correct. Even
where a conveyance of property was procured by fraud or undue in-
fluence and the deed was fully valid until rescinded by the Court, the
Privy Council held that the defrauded person was entitled to an
account of the mesne profits from the date of the conveyance and
not only from the date of the suit. Satgur Prasad v Har Narain Das
(1932) 59 I.A., 147, 7 Luck., 64, A I.R. 1932 P.C., 89. See ante §404.

(/) (1856) 6 M.I.A., 393.

(k) Lalla Atnarnath v. Achan Kunwar (1891) 19 LA., 196, 14 All.,
420; Lakshman v. Radhabai (1887) 11 Bom., ^9; Dharam Chand v.
Bhawani (1897) 24 I.A., 83, 25 (ial., 189; Ghansham v. Badiya Led
(1902) 24 All., 547.

(/) Snmohan Jha v. Bnjbehary Misser (1909) 36 Cal., 753; Ganesh
Lai v. Khetra Mohan (1926) 53 LA, 134, 5 Pat., 585; Jiban Krishna
Roy V. Brojo Lai Sen (1903) 30 I.A., 81, 30 Cal., 550 (arrears of
rent); Jagannath v. Gurcharan A.l R. 1929 Oudh, 422; Rameswar v.
Provabati (1914) 20 C.L.J., 23, 19 C.W.N., 313; payment of arrears of
rent due under a lease taken by the widow for her own benefit is
not a necessity. Ishwari Prasad v. Babunandan (1925) 47 All., 563.

(m) Karimuddin v. Gobindkrishna (1909) 36 I.A., 138, 147, 31
AIL, 497; Krishna v. Muthulakshmi A.I.R. 1934 Mad., 169; Jagadat
Singh v. Kanhaiya Baksh (1929) 4 Luck., 26, A.I.R. 1929 Oudh, 364;
Bhagwan Das v. Mahadeo Prasad (1923) 45 AIL, 390; Jado Singh v.
Nathi Singh (1926) 48 AIL, 592; Upendranath v. Kiran Chandra
A.I.R. 1926 Cal., 1046; Ram Asre Singh v. Ambica Lai A.I.R. 1929
Pat., 216. See also Thirumalaisamy v. Venkatarama A.I.R. 1929 Mad.,
601.

[chap, xvh,

788

woman’s estate.

V, Benefit of
the estate.

W idow’s
power to sell.

estate, but to which she alleged a title (n) , So a debt incurred
for the necessary repairs of the property will bind the
reversioners (o). The question under what circumstances an
alienation will be valid when the necessity is only partial
has been already discussed (§ 367).

§ 653. It was held by the Privy Council in Bhushana
Rao V. Subhayya that a widow or other limited
owner (an alienate not onlv for legal necessity but
also for the benefit of the estate (p). The explana-
tion of this expression has given rise to conflicting
opinions and has been discussed before (§363) , Too narrow a
view has been taken in some of the cases (q). There can be
little doubt that the power to alienate for the benefit of the
estate possessed by the w’ldow must be a real power and not
an illusory one (r). At the same time she cannot embark
upon costly improvements which may or may not be beneficial
to the estate. The intermediate view taken by the Full Bench
of the Bombay High Court as to the meaning of “benefit of the
estate” will properly apply in judging of the acts of a limited
owner ( 5 ).

§ 654. Where a case of necessity exists, the heiress is not
bound to borrow money, with the hope of paying it off before
her death. Nor is she bound to mortgage the estate, and
thereby reduce her income for life. She is at liberty, if she
thinks fit, absolutely to sell off a part of the estate. And even
if a mortgage would have been more beneficial, still if the
heiress and the purchaser are both acting honestly, the transa(-

{n) Amjad Ah v Moniram (1886) 12 Cal, 52, Debt Dayal v.
Bhan Pertap (1904) 31 Cal., 433, Indar Kuar v. Lalta Prasad (1882)
4 All. 532.

(o) Hurry Mohun \. Ganesh Chunder (1884) 10 Cal., 823 FB.;
Ganap v bubbi (1908) 32 Bom., 577, Ram Nayak v Mt, Rup Kali
A I.R. 1934 All , 557.

(p) 41 C WN, 18, AIR 1936 PC, 283, Ram Sumran v. Shyam
Kumari (1922 ) 49 LA, 342, 1 Pat, 741, Palaniappa v. Deva Sikha-
many (1921) 48 LA., 147, 44 Mad, 709

iq) Ganesa Aiyar v. Amirthasami Odayar (1918) M W.N., 892;
Ganap v. Subbi (1908) 32 Bom, 577. In re Krishnaswami Doss Reddi
(1912) M.W.N.. 167.

(r) Mahalakshmamma v. Ramaswami (1926) 50 M.L.J , 651; Ram
Sumran v. Shyam Kumari (1922) 49 I A , 342, 1 Pat, 741; see Subra-
manya Chetti v Ramakrishnamma (1924) 20 M.L.W., 627, A.I.R. 1925
Mad., 403. In Bhogaraju v. Seshayya (1902) 35 Mad, 560, a debt for
the construction of a bouse which was not necessary was held not to
bind the reversioners Mohammed Ah Khan v. Kanai Lai AIR. 1935
Cal., 625. Compare the powers of a manager, Jagat Narain v. Mathura
Prasad (1928) 50 All, 969 F.B ; Amrej Singh v. Shambu (1933) 55
AIL, 1 F.B.; Niamat Rai v. Debt Dayal (1927) 54 I.A., 211, 8 Lah.,
597; Sellappa v. Suppan [19371 Macl., 9()6.

( 5 ) Hemraj v. Nathu (1935) 59 Bom., 525 F.B.

PARAS. 654-655.]

RURDEN OF PROOF.

tion cannot be set aside at the instance of the next heir (^) . So
where the income of property which has been mortgaged is not
sulHcient to pay the interest on the debt, the widow is justified
in selling it before the debt is due, if in the circumstances
this is a proper, though not a necessary course to take. “A
widow, like a manager of a family, must be allowed a reason-
able latitude in the exercise of her powers, provided she acts
fairly to her expectant heir” (u).

Any stipulation for a high rate of interest, where there Rate of
was no necessity for it, is not binding on the reversioners, interest,
though agreed to by the widow (v).

§ 655. When a person deals with a widow or other Onus of
limited owner, he must prove the existence of necessity or proof,
benefit upon which he relies as giving validity to the transac-
tion. In Sham Sundar Lai v. Achhan Kunwar, it was laid
down: “In a suit like the present, on a bond made by a
person with restricted powers of alienation, the defendants
are not required to plead the absence of legal necessity for
the borrowing. It is for the plaintiff to allege and prove the
circumstances which alone will give validity to the mort-
gage” {w) . Nor is the burden thrown upon the reversioners

(0 Singam Chetti Sanjivi v. Droupadi Bayamma (1908) 31 Mad,
153; Balknshna Das v. Hira Lai (1919) 41 AIL, 338; Taraprosad v.
Madhu Sudan (1925) 30 C.W.N., 204; Kuthalinga v. Shanmuga (1926)
50 M.L.J., 234.

(tt) Venkaji v. Vishnu (1894) 18 Bom., 534. As regards widow’s
power to lease, see Dayamani Debi v. Srinibash Kundu (1906) 33
Cal., 842; Md, Ah Khan v. Kanai Lai Haidar A.I.R. 1935 Cal., 625
(lease for 99 years bad) , Sankar Nath v. Be joy Gopal Mukherji
(1908) 13 C.W.N., 201, affirmed in (1914) 41 Cal., 793 P.C. (60
years lease good). Nabakishore v. Upendra Kishore ^1922) 42 M.L.J.,
253 P.C. (permanent lease bad) ; Mt, Imrat Bai v. Phula A.I.R, 1934 Nag.,
103 (perpetual lease invalid). A ryoti settlement by a widow is valid:
Biswanath v. Ram Prasad (1931) 10 Pat., 572. As to whether a
widow or a manager who is a landholder under the Madras Estates
Land Act can convert private land into ryoti land so as to bind
coparceners or reversioners, see Veerayya v. Venkata Bhasyakarala Rao
A.I.R. 1936 Mad., 887. The decision was under section 181 as it
stood before its amendment in 1934 which expressly confers the right
to convert.

(v) Hurro Nath v. Randhir (1891) 18 I.A., 1, 18 Cal., 311;
Radhakisheen v. Jado Sahu (1925 ) 51 I A., 278, 4 Pat., 19. See as
to compound interest, Sunder Mull v. Satya Kinker (1928) 55 I. A., 35,
7 Pat., 294; Nazir Begam v. Rao Raghunath Singh (1919) 46 I. A.,
145, 41 All., 571.

{w) Sham Sundar Lai v. Achhan Kunwar (1899) 25 I. A., 183,
191, 21 All., 71; Medal Dalavoi v. Nainar Thevan (1922) 27 C.W.N.,
365 P.C.; Obala Kondama v. Kandaswami (1924) 51 LA., 145, 152, 47
Mad., 181; Maheshar Bakshsingh v. Ratan Singh (1896) 23 I. A., 57,
23 Cal., 766; Dharam Chand v. Bhawani Misrain (1898) 24 LA, 183,
25 Cal., 189; Bhagwat Dayal v. Debi Dayal (1908) 35 I. A., 48, 35
Cal., 420; Upendra Nath v. Kiran Chandra A.I.R. 1926 Cal., 1046;
Meenambal Ammal v. Aburub animal A.I.R. 1930 Mad., 688, 59 M.L.J.,
160 .

?90

woman’s estate.

[chap. XVlt,

Creditor
need not
see to

application
of money.

Recitals.

of proving that the estate left by the husband was suflScient
to meet the claims upon the widow (:r) . It is settled law
that even though there may not be legal necessity in fact, the
alienee will be protected if he honestly did all that
was reasonable to satisfy himself that the required necessity
existed ( j) . Sec. 38 of the Transfer of Property Act and the
illustration to it directly apply, as Chapter II of the Act has
now been made applicable to Hindus and Buddhists {z ) ,

§ 656. The creditor or alienee however is not bound
to see to the application of the money unless it is

his own debt oi unless he undei lakes to pay the debts him-

self ni enteis in some way upon the management
of the properly [a). One who claims title undei

a conveyance fiom a woman holding a limited estate
and seeks to enfoice it against the leversioners is

always subject to the buiden of proving, not only

the genuineness of his conveyance, but the full com-

prehension by the limited ownei of the nature of the aliena-
tion she w as making (Z>). The amount of pi oof may vary
according as he is the immediate parly to the transaction, or
only the representative of such parly, and according to the
lapse of time that has taken place, and other similar ciicum-

stances. And if he once proves the existence of a debt,

which would justify the transaction, its continuance will be
assumed, unless the peison who contests the transaction shows
sufficient cause for assuming that it was satisfied (c).

§ 657 Recitals in an instrument of mortgage or sale that
it was executed for a particular purpose are not evidence
either of the existence of the purpose or of the adequacy of the

(x) (1896) 23 J.A., 57, 23 Cal., 766 supra.

(y) Hiinooman per sand y Mt Babooec Miinraj (1856) 6 M.I.A.,
393, Anant Ram v Collector of Etah (1918) 40 All, 171 PC ; Obala
Kondama Naicker v. Kandasanu (1924) 51 I.A., 145, 152, 47 Mad,
181.

(z) See the amending Act XX of 1929, bce ante § 371.

(a) Hurronath Rai v. Rundhir Singh (1891) 18 (Jal., 311, Gliaii’
sham Singh v. Badiya Lai (1902) 24 All., 517, Lala Amainath v
Athan {im2) 19 1 A , 196, 14 All., 420.

(b) Bhaguat Dayal v. Debi Dayal (1908) 35 I.A., 48, 57, 58;

Sham Koer v. Dah Koer (1902) 29 I A., 132, 137, compare Land-

unissa V. Mukhtar Ahmad (1925) 52 I.A., 342.

(c) Hiinoomanpersaud's case (1856) 6 M f.A., 393, Cavaly Vencata

V. Collector of Masulipatam (1867) 11 M.I A., 619, Raj Lukheey.
Gokool (1869) 13 MIA, 209, Rao Karun v Nawab Mohamed (1871)
14 M.I.A., 187. Lala Amarnath v. Achan Kunivar (1892) 19 I.A., 196,
14 All., 420, Sham Sunder v. Achan Kuntvar (1899) 25 I.A., 183, 21
All., 71, see Ram Nayak v. Mt, Rup Kah, A I K 1934 All , 557

PARAS. 657-658.] widow’s personal liability.

791

enquiry (<i). The alienee or the creditor is bound to adduce
some independent evidence of such circumstances (c).
But, after a long period has elapsed between the
alienation and the suit to set it aside when all those
who could have given evidence on the relevant points
have grown old or have passed away, a recital consistent with
the probabilities and circumstances of the case assumes
greater importance and cannot lightly be set aside. It
is clear evidence of the representation, and if the cir*
cumstances are such as to warrant the belief that an enquiry
would have confirmed its truth, then when evidence of
actual enquiry has become impossible, the recital coupled with
such circumstances would be sufl&cient to support the
transaction (/). In such a case presumptions are permissible
•to fill in the details which have been effaced by time (g).
It is hardly necessary to add that, as between the widow herself
and the person dealing with her, the transaction must be
absolutely free from fraud, and must be shown to have been
entered into with the fullest knowledge by her of its nature
and consequences {h ) .

In Vasonji Morarji v. Chanda Bibi, the Judicial Committee
held that recitals which were necessary if the executant were
disposing of her absolute interest, but serving no purpose if
the object was only to convey her limited interest, expressed
an intention to deal with the entire estate (/)•

§ 658. A mortgage by a widow for proper and necessary
purposes will bind the estate, though she contracted not as a
widow in her own right but as guardian for a supposed
adopted son, whose adoption turned out to be invalid (y).
Where a Hindu widow obtains a loan, she is at liberty to bind

Husband’s
estate not
bound by
personal
obligation
of widow.

id) See ante §§ 372, 373.

(e) Brij Lai v. Inda Kumvar (1914) 36 All., 187 P.C.; Rekha
Thakur v. Ramanadhan Rai A.I.R. 1936 Pat., 7,

(/) Bangachandra v. Jugut Kishore (1917) 43 I.A.. 249, 44 Cal.,
186; Somayya v. Venkayya A.I.R. 1925 Mad., 673, 48 M.L.J. 224;
Ankula Sanyasi v. Gundala Ramachandra A.I.R., 1926 Mad., 692;
Kumaraswami v. Narayanaswami A.I.R., 1932 Mad., 762; Bhojraj v.
Sitaram A.I.R. 1936 P.C., 60, 70 M.LJ., 225; Thimmanna v. Rama
Bhatta A.I.R. 1938 Mad., 300.

(g) Venkata Reddi v. Rani Saheba of Wadkwan (1920) 47 I.A.,
*^1, 43 Mad., 541; Thakur Singh v. Mst, Uttam Kaur (1929) 10 Lah.,
•613.

(A) Kameshtvar v. Run Bahadoor (1881) 8 I.A., 8, 6 Cal., 843;
Sudisht V. Mt, Sheobara (1881) 8 I. A., 39, 7 Cal., 245; Shambati
JCoeri v. Jago Bibi (1902) 29 I. A., 127, 29 Cal., 749; Sadashiv v.
Dhakubai (1881) 15 Bom., 450.

(i) (1915) 37 AIL, 369 P.C.

ij) Lala Parbu Lai v. Mylne (1892) 14 Cal., 401, 418.

792

woman’s estate.

[chap. xvn,.

Simple

money

debts.

herself personally or where the purpose for which she borrow^s^
is a necessary one, she is equally entitled to bind her husband’s
estate. Whether in a particular case the widow intended ta
bind herself alone, or to bind the estate as welt
must be gathered from the recitals, if any, in the deed or from
the surrounding circumstances (k). In this respect there is
no real distinction in principle between a case where a charge
is formall) created by the widow and another where sh('
executes a bond for money advanced. In the former case,
the indication to make her husband’s estate liable may be
clearer than where she executes a promissory note. But when^
once the intention is established, the effect of her act must
depend upon the nature of the debt which is recoverable from
the estate in the hands of the reversionei. namely, whether it
has been incurred for necessary pui poses (/).

On the question however whether the estate would,
be liable to satisfy debts conti acted by the widow where she
neither charged the estate noi pui ported to execute the bonds
as representing the estate, even if such debt be for legal neces-
sity, there has been a considerable conflict of opinion One
view is that the creditor has advanced the loan or taken the
bond only on the personal liability of the widow and has
consequently no right to proceed against the estate (m) . The
better opinion would seem to be that where the debt is for
necessity, the creditoi looks to the estate foi repayment and the
widow obtains the loan as representing the estate and therefore
an intention to bind the estate may be presumed (n). The

{k) Rameshwar Mondal Provabati Debi (1914) 19 C W.N , 313,
319.

(/) Rameswdfi- Mandal v. Provabati Debt (1914) 19 C W N., 313,
Sheikh Ghasit Mean v. Thakur Pauchanan (1936) 15 Pat., 798 (where
all the cases are reviewed), Dhondy i eshwant v. Mishn Lai (1936)

60 Bom.. 311 F.B.

(m) Dhiraj Singh \. Manga Ram (1897) 19 All, 300, Mt. Kishen
Devi V. Chand Mai AIR. 1934 All, 423, Bisheshwardas v. Anjor
Singh AIR 1926 Nag, 334, Ramasiiami Mudaliar v Sellatamnial
(1882) 4 Mad, 375, Kallu v Faiyaz Alikhan (1908) 30 AIL, 394;
Baramdeo \. Lai Bahadur (1934) 15 Pat L.T , 583, Giribala Dassi
V. Srinath Chandra (1908) 12 CWN, 769; Kumarchandra \ Gobinda
Das A.I.R. 1937 Cal, 280, Baijun Doobey \ Brij Bhookun (1875) 2
I.A., 275, 1 Cal., 233.

(zi) Ram Coomar Mitter v Ichamoyi Dasi (1881) 6 Cal., 36;
Hurry Mohun \. Ganesh Chander Doss (1883) 10 Cal., 823 FB.;
Ragella Jogayya v Nimushakavi (1910) 33 Mad, 492, Kristo Gobind
V. Hemchunder (1889) 16 Cal., 511, Kingshi v. Kandaji A.I R. 1929'
Nag, 191; Dhondu Yeshivant v. Mishro Lai (1936) 60 Bom., 311
F.B., Veerabadra v. Marudaga Nachiar (1911) 34 Mad, 188; Parath-
nath V. Rameshtvar A.I R 1938 All, 491. In Lalit Mohun Pal v.
Srimati Daya Moyi AIR. 1927 P.C., 41, the decree against the
minor daughter of the last male holder on a bond executed
by her guardian to pay off a debt of the last maleholder, was held

PARAS. 658-659.] reversioners’ consent to alienation,

79a

rule in Hunooman Persaud’s case as to the suflSciency of
reasonable inquiry is equally applicable to unsecured debts
contracted by a limited owner, if incurred for purposes which
would justify a charge on such estate (o). Of course trade Trade debt^
debts, that is, debts ordinarily incurred by a widow in the
management of a business concern inherited by her are recover-
able against the assets of the business as against the rever-
sioners even in the absence of a specific charge (p).

§ 659. The question whether the consent of reversioners Consent of
will validate an alienation by a widow or other limited owner J^^ienatiom
which is not justified by any legal necessity has had a long ^ widw!^**^
history marked by fluctuations of opinion. It is now well
settled that “when the alienation of the whole or part of the
estate is to be supported on the ground of necessity, then if
such necessity is not proved aliunde and the alienee does not
prove inquiry on his part and honest belief in the necessity,
the consent of such reversioners as might fairly be expected
to be interested to dispute the transaction will be held to
afford a presumptive proof which, if not rebutted by contrary Presumptive’
proof, will validate the transaction as a right and proper proof of
one” [q). The true view is that consent of the reversioners

to be a personal decree in the High Court and m the Privy Council
on the ground that the creditor in his suit, asked only for a personal
decree and the decision went upon the frame of that suit.
The question, whether a decree is perbonal or against the e&late is a
different question from the liability on the bond. Sheik Ghasit Mean
V. Thakiir Panchanan (1936) 15 Pat., 798; Chandra Singh v. Gobinda
Das A l.R. 1937 Cal., 280, Ram Seivak v. Jamuna Prasad A I.R, 1937
Pat., 667.

(o) Maharajah of Bobbili v. Zamindar of Chundi 0912) 35 Mad,
108.

(p) Sakrabhai v. Maganlal (1902) 26 Bom., 206, Dhondu Yesh-
want V Mishrilal (1936) 60 Bom., 311 F.B.; Popat Vuji v. Damodar
A.I.R. 1934 Bom, 290; Paha! wan Singh v. Jiwan Das (1920) 42 All.,
109, Subramanya Chetty v. Ramakrishnamma (1924) 20 M L.W.,
627, A.I.R. 192.5 Mad., 403, The South Indian Export Co., Ltd, v
Subbier (1915) 28 M.L.J , 696; Barada Porsad v. Krishna Chandra
A.I.R., 1934 Cal., 414.

(^) Rangasami v. Nachiappa (1919) 46 I.A., 72, 84, 42 Mad., 523,
536 approving of the propositions laid down by Jenkins, C J., and
Mookerji, J., in Debt Prasad v. Golap Bhagat (1913) 40 Cal, 721
F.B. and di‘^approving Rangappa IS auk v. Kamti Naick (1908) 31
Mad,. 366 F.B.; Bijoy Gopal v. Girindra Nath (1914) 41 Cal., 793
P.C., Han Kishen v. Kashi Per shad (1915) 42 I. A., 64, 42 Cal., 876;
Bajrangi v. Manokarnika (1907) 35 I.A , 1, 30 All., 1, Marudamuthu
V. Srinivasa (1898) 21 Mad., 128 F.B., Abdulla v. Ram Lai (1912)
34 AIL, 129; Ghisiawan v Mt Raj Kumari (1921) 43 AIL, 534; Bhup
Singh V. Jhamman Singh (1922) 44 AIL, 95; Darbari Lai v. Gobind
(1924) 46 AIL, 822; Muhammad Said v. Kunwar Darshan (1928) 50
AIL, 75; Pilu v. Babaji (1910) 34 Bom., 165; Bai Parvati v. Man-
chharam (1920) 44 Bom., 488; Thimmanna v. Rama Bhatta A.I.R.
1938 Mad.. 300.

794

woman’s estate.

[chap, xvn.

Quantum

of cons?ent.

does not by its own force give validity to the alienation but
is only of evidentiary value (r). It raises a presumption that
the transaction was a fair one and one justified by Hindu
law (5). The consent of reversioners, by itself, could only
validate an alienation on the theory that the reversioner
together with the widow could convey the whole estate;
but that IS impossible as the reversioners have no
vested interest, but only a spes successionis (/). As

the consent of reversioner raises a presumption only,

it is open to any reversioner other than the consenting rever-
sioner to pro\e that in fact there was no necessity for the
alienation. Its only effect is to shift the burden of proof
which originallv was on the alienee to the reversioner (w).
But where the alienation is without consideration and is
therefore in form or in substance a gift, the reversioner’s
consent cannot possibly be held to be one in respect of an
alienation for value for purposes of necessity and the trans-
action therefore cannot stand in spite of the consent (v) .

In all cases of partial alienation, where necessity is

negatived either because the alienation is in favour of a

volunteer or because actual proof is forthcoming of want of
necessity, the consent of the reversioner is wholly ineffectual
as against anyone but himself. But if the alienation be total
and the reversionary heirs who consent be the nearest, it
would fall within the doctrine of sui render (w) ,

§ 660. The quantum of consent necessary is ordinarily
the consent of the whole body of persons constituting the next
rever«?ion, though there may be cases in which special circum-
stances may render the strict enforcement of the rule

ir) (1914) 41 Cal, 793 P.C. supra, (1913) 40 Cal, 721 FB.;
Thakur Prasad v. Mt Dipa Kuer (1930) 10 Pat, 352.

( 5 ) Raj Lukhee v. Gokool Chundar (1869) 13 MIA, 209.

(t) (1919) 46 I.A , 72, 81-2, 84, 42 Mad, 523, supra, Ramamurthy
V. Bhimasankarran (1938) 1 MLJ, 296.

{u) (1938) 1 M.L.J., 296 supra, Ramesh Chandra v. Sasi Bhusan
(1919) 30 CLJ., 56, Satyanarayana v Venkanna (1933) 65 M L.J.,
^2, Thimmanna v. Ramabhatta A I.R 1938 Mad, 300, Indarjit v
Jaddu (1933) 55 All. 157.

(v) Ravgasami v Nachiappa (1919) 46 I. A., 72, 85, 42 Mad., 523;
Bakhtawar v. Bhagwana (1^0) 32 All, 176, Abdulla v. Ram Lai
(1912) 34 All, 129, Khawani Singh v. Chet Ram (1917) 39 All, 1;
Ghisiawan v Mt Rajkumari (1921) 43 All., 534; Harihar v. Udainath
(1923 ) 45 AIL, 260, Pilu v. Babaji (1909) 34 Bom., 165, Bai Parvati
V. Manchharan (1920) 44 Bom., 488; Tukaram v. Yesu (1931) 55
Bom, 46, Bala v. Bay a (1936) 60 Bom., 211; Bindeshwari v. Har
Narain (1929) 4 Luck., 622 A.LR. 1929 Oudh, 185.
iw) (1919) 46 I.A., 72, 81, 42 Mad., 523 supra.

PAftAS. 660-661.] REVERSIONERS^ CONSENT TO ALIENATION.

795

impossible (a:). The Judicial Committee in Rangasami
Gounden v. Nachiappa Gounden (y) cited with approval the
observation of Sir James Colville in Raj Lukhee v. Gokool
Chunder that there should be such a concurrence of the
members of the family as suffices to raise a presumption that
the transaction was a fair one and one justified by Hindu
law {z).

Where the next reversioner is a female, as for instance,
a daughter or a mother, her consent alone cannot be regarded
as affording the slightest presumption that the alienation was
a justifiable one (a), whether she has only a limited estate
oi an absolute estate as in Bombay (/>). I'he ease of the
latlci must be different as the reason for the rule itself is
the limited iiatuie ol a womatrs estate and the general
dependenee of women is no giound wheic they take absolutely

i:; 6()J. When a stiingent equity arising out of an alleged
consent by the reversioners is sought to be cnfoiced against
them, such consent must be established by positive evidence
that upon an intelligent understanding of the nature of the
dealings, they concurred in binding their interest; such con-
sent will not be inferred from ambiguous acts or dubious
oral testimony (c). The consent must have been obtained
bona fide, that is to say, it must be a consent to an actual
transfer, and not to a colourable one made for the purpose
of defeating the lights of some other than the consenting
paity (f/j. It must be given with a full knowledge by the
consenting parties of the effect of what they are doing. They
must know that they aie not merely witnessing a transfer by
the widow of her own life-estate, but that they are giving
validity to the destruction of their own future expectations,
and this must be made out all the more clearly where a

(r) Bajrangi v. Manoharmka (1907) 35 LA., 1, 30 All., 1 approv-
ing Radha Shy am v. Joya Ram (1890) 17 Cal., 896; Sham

Sundar v. Achhan Kunwar (1896) 25 I A., 183, 21 All., 71; Vinayak
V. Govind (1901) 25 Bom, 129, Debt Prasad v. Golap Bhagat (1913)
40 Cal., 721 F.B.; Bijoy Gopal v. Ginndranath (1914) 41 Cal., 793 P.C.

(y) (1919) 46 I.A., 72, 42 Mad., 523.

iz) (1869) 13 M.I.A., 209.

(а) Muhammad Nuh v. Brij Bihari (1924) 46 All., 656; Chidam-
hara v. Nallammal (1909) 33 Mad., 410, Ratna ChetU v. Narayanaswanu
(1914) 26 M.L.J., 616.

(б) Bepin Behan v. Durga Charan (1908) 35 Cal., 1086

(daughter) followed in Uaridasi v. Bidhumukhi (1922) 35 C.L.J., 66,
69 per Mookerjee J.; Varjivan v. Ghelji (1881) 5 Bom , 563 (daughter) ;
Pilu V. Babaji (1909) 34 Bom., 165 (daughter) ; Vinayak v. Govind
(1901) 25 Bom., 129 (bi&ter) ; Kurvateppa v. Nigayya A.I.R. 1930 Bom.,
299. But see Mallik Saheb v. Mallik Arjunappa (1914) 38 Bom., 224
where the other cases were not referred to.

(c) Han Kishen Bhagat v. Kashi Pershad Singh (1915) 42 I.A.,
64, 42 Cal., 876; Shyam Peary v. The Eastern Mortgage and Agency
Co., Ltd., (1917) 22 C.W.N., 226, 238.

(d) Kolandaya Sholagan v. Vedamuthu (1896) 19 Mad., 337.

Consent of
female.

Evidence
of consent.

796

Woman’s estate.

[chap, xvn,

Subsequent

consent.

Purchased

consent.

pardanashin female is a party to the transaction (e). The
inference of consent will be clear if the reversioner takes a
leading part in effecting the transfer or participates in the
benefits resulting from it so long as he is alive (/) . Mere
attestation is wholly insufficient to establish consent; for bv
itself it proves no more than that the signature of an executing
party has been attached to a document in the presence of a
witness. It does not involve the witness in any knowledge of
the contents of the deed nor affect him with notice of its
provisions. It could, at the best, be used for the purpose of
cross examination in ordei to extract from the witness evidence
to show that he was in fact aware of the character of the tran-
saction effected by the document to which his attestation was
affixed. By itself it would neither imply consent nor create
an estoppel (g).

In Bajrangi v Manokat niLa. it was observed, “It is immate-
rial whethei the concurrence of the leversioners is given at the
time the alienation is made or whether the transaction is
subsequently ratified” (h) This would plainly be so on the
older view that consent validates an alienation. Even on the
view taken in Rangasami Gounden v. Nachiappa Gounden (i)
of the consent of reversioners as having only evidentiary value,
a subsequent approval may perhaps be some evidence against
the reversion, as nothing was said in the later case affecting
that aspect, but its value must necessarily be much less.

§ 662. The fact that the level sioner gave his consent for a
consideration or that he w^as benefited by the transaction will
not apparently prevent his consent from being presumptive
proof of legal necessity (/). On the view which was over-

(e) Jiu^an Singh Misti Lai (1896) 23 I A., 1, 18 All, 146; Sham
Sundar v. Achan Kunwar (1899) 25 LA., 183, 189, 21 AIL, 71, 80;
Tika Ram v. Deputy Commissioner of Bara-Banki (1899) 26 I.A., 97,
26 Cal., 707, see also Han Kishen Bhagat v. Kashi Pershad Singh
(1915) 42 I A, 64, 42 Cal, 876.

(f) Bijoy Gopal Maker ji v. Girindra Nath Maker ji (1914) 41 Cal.,
793 (PC.); Han Kishen Bhagat v. Kashi Pershad Singh, ubi sup,

ig) Banga Chundra v. Jagat Kishore (1917) 43 I.A., 249, 255, 44
Cal., 186, (1915) 42 I.A., 64, 42 Cal., 876, supra, see also Lakhpati
V. Ramhodh Singh (1915) 37 AIL, 350; Vinayak v. Govind (1901)

25 Bom., 129, 130, Thakur Prasad v. Mt. Dipa Kiier (1931) 10 Pat.,

352; Har Mitra v Raghubar (1928) 3 Luck., 645; Pattayya v.

Venkamma (1915) 17 M.L.T, 393.

{h) (1908) 35 I A., 1, 30 AIL, 1.

(0 (1919) 46 LA., 72, 42 Mad., 523.

(/) (1907) 35 LA., 1, 30 All, 1 supra; Ambika Prasad v. Chandra-

mam (1929) 8 Pat., 396, 410; Babu Singy, Rameshwar {1932) 7 Luck.,

360, A.LR. 1932 Oudh, 90.

TARAS. 662-663.] widow’s surrender of estate.

797

ruled in Rangasami Gounden v. Nachiappa Gounden {k) that
consent renders an alienation valid, this would be correct. But
on the truer view that it only raises a presumption that “the
transaction was a fair one and one justified by Hindu law”,
the consent of the next reversioners, where it is purchased for
a consideration, cannot be evidence of the propriety of the
transaction as against the actual reversioner any more than a
purchased consent will be evidence of the propriety of an
adoption.

As the presumption raised by the consent of reversioners
is a general one, once it is rebutted, the onus is upon the alienee
to prove legal necessity for the particular items of considera-
tion (/).

§ 663. It must be remembered that where an estate is
held by a female, no one has a vested interest in the succession.
Of several persons then living, one may be the next heir in the
sense that, if he lives, he will take at her death in preference
to anyone else then in existence. But his claim may pass
away by his own death, or be defeated by the birth or
adoption of one who would be nearer than himself. A Hindu
reversioner has no right or interest in praesenti in the property
which the female owner holds for life. Until it vests in him
on her death, should he survive her, he has nothing to assign
or relinquish, or even to transmit to his heirs. The rights of
reversioners become concrete only on her demise. The rever-
aioners are but expectant heirs with a spes successioms {rn).

But it has been settled that a Hindu widow can renounce
in favour of the nearest reversioner if there be only one or
of all the reversioners nearest in degree if more than one at
ihe moment; that is to say, she can, so to speak, by a voluntary
act bring about her own civil death. The foundation of the
doctrine is the text ol Katyayana as explained by Jimuta-
vahana (n) .

(A) (1919) 46 LA., 72, 42 Mad , 523.

(/) Indarjit Singh v. Jaddu (1933) 55 AIL, 157.

(m) Bahadur Singh v. Mohar Singh (1901) 29 I A., 1, 9, 24 AIL,
94; Amrit Narayan v. Gaya Singh (1917) 45 LA., 35, 45 Cal., 590;
Rangasami Gounden v. Nachiappa Gounden (1919) 46 LA., 72.

(/i) According to Mr, Justice Mookerjee, the theory of relinquish-
ment finds support in Dayabhaga, XI, 1, 56-59 which is “comprehensive
enough to include not merely the case of the death of the widow, but
all cases where her right ceases”. Dehi Prasad v. Golap Bhagat (1913)
40 Cal., 721 F.B., 772; Ram Krishna v. Kausalya Mam (1935) 40
CI.W.N., 208, 211 criticising the view of Kumaraswami Sastri, J., in
Vaidyanatha Sastri v. Savitri (1918) 41 Mad., 75, 90 F.B.

Surrender by
a widow.

798

woman’s estate.

[chap. XVII,

Behari Lai v.
Madho Lai

Principle
extended to
alienations
of entire
estate.

The leading case on the point is Behari Lai v. Madho Lai (o) y
where the Judicial Committee observed that “according to
Hindu law, the widow can accelerate the estate of the heir by
conveying absolutely and destroying her life-estate. It was
essentially necessary to withdraw her own life-estate so that
the whole estate should get vested at once in the grantee”.
The principle upon which the widow’s power of surrender
vests is the efiacement of the widow — an effacement which in
other circumstances is effected by actual or civil death — which
opens the estate of the deceased husband to his next heirs at
that date (p). “Now there cannot be a widow who is partly
effaced and partly not so”, and consequently there can be no
partial surrender in law, in other words, no surrender of
part only of the properties or of part only of the interest in
all the properties, (q)

Since the surrender in favour of the nearest reversioners
vests the estate in them, the doctrine has been extended
to empowering the widow to convey with the consent of the
nearest reversioner or reversioners the entirety of the estate.
Accordingly an alienation by a widow of her husband’s estate
may be validated if it can be shown to be a surrender of her
whole interest in the whole estate m favour of the neaiest
reversioner or reversioners at the time of the alienation. In
such circumstances, the question of necessity does not fall
to be considered. But the surrender must be a bona jide
surrender, not a device to divide the estate with the rever-
sioner (r).

No formal

transfer

necessary.

§ 664. No formal surrender or transfer is necessary (s).
For the basis of the doctrine of surrender is the effacement
of the widoi^ s interest and not the ex facie transfer by which
such effacement is brought about. The result is merely that
the next heir of the husband steps into the suc-

(o) (1891) 19 I A, 30, 19 Cal, 236 approving Nabokishore
Harinath (1884) 10 Cal., 1102 FB.

(p) (1919) 46 LA, 72, 80, 42 Mad, 523 supra, (1913) 40 Cal,
721 F B. supra

iq) (1919) 46 I A., 72, 80, supra, (1913) 40 Cal, 721 F.B supra,
Marudamuthu v Srinivasa ( 1898 ) 21 Mad , 128 F B

(r) Rangasami Gounden v. Nachiappa Gounden (1919) 46 I A.,
72, 42 Mad , 523 ; M t, Bhagwat Koer v. Dhanukdhari Prasad ( 1920)
46 I.A , 259, 47 (ial., 466; Man Singh v. Nowluckbati (1926) 53 LA.,
11, 22, 5 Pat., 190, Ramayya v. Lakshmayya A LR. 1938 Mad., 513.

(s) Nirmal Chandra v. Mohitosh Das A.I R. 1936 Cal , 106, 40^
C.W.N , 777, A.LR. 1938 Mad, 513 supra, Brojeshwaree v. Mano-
ranjan [1937] 1 Cal, 690 (where the grantee is already in possessiony
the acceptance of the deed of surrender is enough) ; Kotireddi v.
Subbareddi A.LR. 1925 Mad., 382.

PARA. 664.]

widow’s surrender of estate.

799

cession in the widow’s place (5^). This relinquish-
ment or abandonment of her rights may be effected by
any process having the effect, provided there is a bond
fide and total renunciation of the widow’s right to hold the
property (s). Accordingly in Bhagwat Koer v. Dhanukdhari
Prasad Singh, where on the death of a Hindu, his widow
accepted his nephew’s title and received from him maintenance
and where the documents between them were drawn up not on
the footing of a surrender of an acknowledged right but upon
an admission that the right did not exist, it was held by the
Judicial Committee that there was in substance a complete
self-effacement by the widow precluding her from asserting
any claim to the estate (^) .

In Sureshwar Misser v. Maheshrani Misrain, a Hindu died Sureshwarv^
leaving an infant son, widow and daughters, providing by his ^^^keshranu
will that on his son’s death, his daughters should take his im-
movable property. On the son’s death, the next reversioner
sued the widow and the daughters to set aside the will and the
parties enteied into a compromise whereby the will was given
up and the widow surrendered all rights of succession to the
immovable property and the plaintiff who by the surrender
became entitled as the next reversioner transferred half of it
to the daughters. Both the reversioner and the daughters gave
a small portion of the land to the widow for her life. It was
held that the compromise was a bona fide surrender of the
whole estate and not a device to divide it with the next
reversioner (a). A reasonable provision by way of mainte-
nance reserved to the widow or other female owner does not
affect the validity of the surrender if in other respects
unobjectionable (v).

(si) Sitanna v. Viranna (1934) 61 I.A., 200, 57 Mad., 749, 759.

(0 (1920) 46 I.A., 259, 270, 271, 47 Cal., 466.

(a) (1920) 47 I. A., 233, 48 Cal., 100; Ram Nana v. Dhondi (1923)
47 Bom., 678; Sakharam Bala v. Thama (1927) 51 Bom., 1019; Shanti
Kumar Pal v. Mukundalal (1935 ) 62 Cal., 204; Bhagwat Koer v.
Dhanukdhari (1919) 46 I.A , 259, 47 Cal., 466; Hemchunder
Sarnamayi (1895) 22 Cal., 354; Rangappa v. Kamti (1908) 31 Mad,
366; Pilu V. Balaji (1910) 34 Bom., 165; Mmi v. Laldas (1917) 4
Bom., 93; Sham Rathi v Jaicha (1917) 39 AIL, 520; Thakur Prasad
V. Mt. Dipa Kuer (1931) 10 Pat., 352; Brajeshwaree v. Manoranjan
[1937] Cal., 690.

iv) (1920) 47 I.A., 233, 48 Cal., 100; Naru v. Tai (1923) 47
Bom., 431; Sitanna v. Viranna (1934) 61 I.A., 200, 57 Mad., 749;
Ram Nana v. Dhondi (1923) 47 Bom., 678 dissenting from Adiveppa
V. Tontappa (1920) 44 Bom., 255; (1910) 46 I.A., 72, 42 Mad., 523
supra; Ram Adhar Singh v. Ram Mausher Singh (1923) 45 All., 610;
Angamuthu v. Varatharajulu (1910) 42 Mad., 854 F.B.; Gopalchandra
V. Surendranath A.I.R. 1925 Cal., 1004; Abhodya Pada v. Ramkinkar
A.I.R. 1926 Cal., 228; Ramknshna v. Kausalya A.I.R. 1935 Cal., 689,

BOO

WOMAN S ESTATE.

[chap. XVII,

'Surrender to

female

reversioner.

The surrender to be valid must be to the nearest rever-
sioner (to). It has been held that a surrender may, with the
consent of the nearest reversioner, be made in favour of the
reversioner next to him, if it is otherwise unobjectionable (:i;) .
The point was raised but has been left open by the Privy
Council (y). It would involve the fiction of a simul-

taneous second surrender though it mif>:ht be the logical
result of the doctrine by which a widow can validly transfer
the entirety of the estate with the consent of the next

reversioner.

§ 665. In the recent decision, Vytla Sitanna v. Marivada
Veeranna, the Judicial Committee held that a widow can
validly relinquish in favour of the next female heir, even
though the latter takes onlv a life estate and that the reservation
of a few acres for the widow^’s own maintenance would not
affect the validity of the surrender. Of course, the surrender
in favour of the next female heir will not enlarge her estate

under Hindu law; the female heir will take an absolute estate

40 CWN, 208, Gopal Das v Sn Thakurji AIK. 1936 All., 422;
Anna v. Gojra AIR 1928 Bom, 333, Hhuta Singh v. Mangu A I.R.
1930 Lah., 9, Karuppan Goundan v Mudali Goundan (1922) 43 MLJ.,
36; Subbiah v Falnry (1908) 31 Mad, 446 In the following cases the
surrender was held invalid Man Singh v Nowlak Bhate (1926) 53
I.A., 11, 5 Pat, 190 on appeal from (1923) 2 Pat, 607, Kottayya v.
Veerayya AIR. 1925 Mad, 177, Krishna v Subbanna AIR. 1929
Mad, 611, Gdvind Prasad v. Shivlinga AIR 1931 Bom, 107, Ram
Ratan Pal v Gangotri AIR. 1935 All , 73

(m;) Rar\^asami v Nachiappa (1918) 46 I A , 72 42 Mad, 523;
Ramkrishna v Sn Kausalya AIR. 1935 Cal, 689, 40 CWN, 208;
Jagwanti v. Udit Naraian AIR 1927 All, 587 (not even to his
father); Radharani v Brindarani AIR 1936 Cal, 392, 63 CLJ, 263
(may be to the karta on behalf of all the rever^^ioners) , Ramayya v.
Banamma AIK 1936 Mad , 16, 42 M L W . 790 (even though a minor).
In the following cases the surrender was held invalid as being to some
only of the reversioners. Mangayya v Shesagiri (1924) 49 Bom., 187;
Dodbasappa \ Basawaneppa (1918) 42 Bom, 719, Raghunandan v.
Tulshi Singh (1923) 46 All, 38, Man Singh v Nowlnckbati (1926)
53 LA , 11, 5 Pat., 190; A I R 1925 Mad , 177 supra, AIR. 1931 Bom.,
107 supra If there are two or more co-widows the suriender must
be by all of them. Anna v Jaggu AIR. 1925 Mad, 153; Dulhin
Par ball v. Baijnath (1935) 14 Pat, 518 The surrender may be by
one single act or by a number of successive acts Sn Rajah Surya
Rao V. Sn Rajah Suryanarayana (1921) 41 MLJ., 208, Maru v. Hanso
(1926) 48 All, 485

(x) Chinnaswami v. Appaswami (1919) 42 Mad , 25, followed in
Mt Chito V. Jhunni Lai A.IR 1930 All , 395; Antu v. Yeshwant A.I.R.
1932 Bom., 430. The case in 42 Mad., 25 was decided without reference
to the decision m 46 I.A . 72.

(y) Narayanaswami Ayyar v. Rama Ayyar (1930) 57 I.A, 305, 53
Mad., 692.

PARAS. 665 - 666 .] widow’s surrender of estate.

80 ]

or a limited estate according to the school of Hindu law by
which she is governed ( 2 ).

The validity of a surrender made by a limited owner, if
it was bona fide and not a device to divide the estate with the
reversioner, cannot be attacked on the ground that the motives
which influenced her were not religious or proper (a),

A gift or transfer to some only of the nearest reversioners
without the consent of the rest will not be a valid
surrender (6).

Where a widow makes a gift of the whole estate with the
consent of the next reversioners it will come within the
principle of N ohokishore^ s case (c) as explained in Ranga-
sami Gounden v. Nachiappa Gounden (d) ; in other words,
it will be a surrender to the next reversioner and an
alienation by him to the third person (e).

55 666. Is it open to a Hindu widow who has alienated Surrender
a part of hei husband’s estate to make a valid surrender of
what remains? There is a difference of opinion on this
question. On the one hand the Madras High Court has held
that if the prior alienation is for purposes binding on the
Teversion, the subsequent surrender is valid (/). On the
other hand it has been held in a series of cases that where a
widow alienates part of the estate w^ithoul justifying necessity
and afterwards surrenders the whole of what remains to the
next reversioner, the lattei is not enlilled to challenge the

(z) (1934) 61 LA., 200, 57 Mad., 749, approving Sartaj v. Ranjas
(1924) 46 All., 59, Bhupal Ram v. Lachma Kuar (1889) 11 All., 253;
Narahari v. Tai (1923) 47 Bom, 431 (widow ‘•urrendered to daughter
and two years later, the daugliter conveyed back to the widow abso-
lutely — held that the widow took an absolute estate) The decision
would be right only if the original surrender was perfectly bona fide,

(a) Subbalakshmi v. Narayana Ayyar (1935) 58 Mad., 150.

(b) Khaitani Singh v. Chet Ram (1917) 39 All., 1; Raghunandan
V. Tulshi (1924) 46 All., 39; Bachu v. Mt. Dulhina A.I.R. 1925 All., 8;
Prag Narain v. Mathura Prasad A.I.R. 1924 All, 740; the gift must
be of the entire estate to the immediate reversioner to amount to a
surrender; Gangadhar v. Prabhudha (1932) 56 Bom., 410; Mt Punni
V. Mt, Sobhi A I.R. 1937 Lah., 54; Indra Naram v, Sarbo^oia Dasi
A.I.R. 1925 Cal., 743; Pdu v. Babaji (1909) 34 Bom., 165.

(c) Nobokishore v. Hart ^ath (1884) 10 Cal., 1102 FB.

id) (1918) 46 I.A., 72, 42 Mad, 523.

(e) Yeshwanta v. Antu (1934) 58 Bom., 521, dissenting from
Tukaram v. Yesu (1931) 55 Bom., 46; Bala v. Bay a (1936) 60 Bom.,
211 .

(/) Ramayya v. Bapanamma [19371 Mad., 248.

53

B02

woman’s estate.

[chap. XVII,

alienation made by the widow until she dies (g). In other
words the alienation is valid for her life and the alienee’s-
possession cannot he disturbed during her life time. But
the logical result of the theory of relinquishment is her self-
effacement and letting in the next heir at once. As Mookerjee,
J., pointed out, the reverter takes effect in all cases wheie
the widow’s light ceases; “in other words, the reversioners
take the estate, not merely when the widow dies, but also
when her title is extinguished, for instance, by renunciation,
remarriage or the like” (g^) . And her remarriage, as has-
been held, determines at once the interest of an alienee who
would othenvise be entitled to retain it (§ 533). On sur-
render bona fide and valid in all respects, the reversioner’s
title IS b) succession like the title of a son adopted by the
widow. The suiiendei operates as if it were the widow’s
civil death. It would seem theiefore that when a widow
makes a gift or an alienation which is in effect a gift and
afterwards makes a surrender, the reveisioncis would be en-
titled to recover the property at once(g“). An equity in
favour of an alienee for value may pci haps be recognised as
an exception, though one who purchases a widow’s estate
must know it is liable to terminate on hei remarriage, re-
linquishment, adoption of a son or her entrance into a
religious oidei Wheie the alienation is for necessity, it will
of course, not be affected by the surrender.

In ev^ery case therefore the surrender can only be of the
estate that she has at the moment and not of that which she
has validly parted with either for the period of her life or
absolutelv The view that where the alienation made by
the widow was foi pui poses not binding on the estate, it
would be a^ reservation of a benefit to the widow so as
to make the surrender invalid is opposed to the
line of authorit} above referred to as well as to principle (g^).

(g) Gopal Dos V Sri Thakurji AIR 1936 All, 422, Lachmi Chand
V. Lachho (1926) 49 All, 334, per Walmsley, J, in Prafulla Kamini v.
Bhabani Nath (1925) 52 Cal, 1018, Krishnavenamrna v. Hanumantha
Rao AIR 1933 Mad, 860, Sundarsiva v V lyyamma (1925) 48 Mad.^
933, Subbamma Subramanyam (1916) 39 Mad., 1035; Ramayya v.
Naray\a (1927) 52 MLJ, 634, Karuppia Pillai \. Irulayee (1927)
52 M.L J., 195, Basudeo Mandar v Baidyanath Mandar AIR 193S
Pat, 175, Jeka Dula v Bai Jivi AIR 1938 Bom, 37, 39 Bom. LR,
1072; Rangnekar, J s view that a surrender is after all a kind of
alienation is erroneous

(gi) Debt Prasad v Golap Bhagat (1913) 40 Cal., 721, 772 F.B.,
approved by Lord Dunedin in Rangasuami \. Nachiappa (1919) 46
I.A., 72, 42 Mad, 523.

(g2) Ram Krishna v Kausalya Mam AI.R. 1935 Cal., 689, 40^
C.W.N, 208; see §663, note (n).

(g3) [19371 Mad., 248, 256 supra, Vijiaraghavachanar \ Ramanu-
jachariar (1928) 55 M.LJ., 859.

PARAS. 666-667.] WHEN REVERSIONER ESTOPPED.

80S

Where, however the prior alienation and the subsequent
surrender are part of a scheme by which she divides up the
inheritance for her own benefit, the case will of course be
different. In Sakaram Bala v. Thama^ where a widow made
a gift in favour of her nephew of the entire estate and made
another gift of the same in favour of her daughter and the
reversioner and afterwards adopted a son, it was held, that
the surrender was invalid and that the adopted son’s claim
prevailed as against that of the surrenderee {h) , Where a
widow makes a valid surrender of her husband’s estate to the
next reversioner, an adoption made by her subsequently does
not destroy the effect of the surrender (i).

§ 667. No one can be estopped by his mere signature
unless it can be established by independent evidence that to
the signature was attached the express condition that it was
intended to convey something more than a mere witnessing
of the execution, and involved consent to the transaction. Nor
is It enough that the attestation has induced a belief upon
which the alienee has acted. It must be made out that the
attestor knew that that belief would arise and signed with that
intent (/). Where the alienee himself was fully aware that
the alienation was without necessity, and had not been induced
in consequence of any representation contained in the deed
to alter his position in any respect, there would be no
estoppel (A). The association of the reversioner in the execu-
tion of the deed may be better evidence of his consent, but is
wholly futile to pass his reversionary interest which is merely
a spes successionis. But if the elements of an estoppel are
made out, he may be precluded from impeaching the
transaction (/). The reversioners who consented to an aliena-
tion made by the widow or other limited owner, even though
it was made without necessity are precluded from disputing
its validity (m). In Rarngowda Anna Gowda v. Bhau Saheby.

{h) (1927) 51 Bom., 1019.

{i) Rama Nana v. Dhondi Murari (1923) 47 Bom., 678; Antu v.
Yeshwant A.I.R. 1932 Bom., 430.

(y) Pandurang v. Markandeya (1922) 49 I.A., 16, 49 Cal., 334.

{k) Gut Narayan v. Sheolal Singh (1919) 46 I.A., 1, 46 Cal., 566.

(/) (1919) 46 LA., 1, 46 Cal., 566 supra; Bai Parvati v. Dayabhai
Manchharam (1920) 44 Bom, 488.

(m) Jiwan Singh v. Misri Lai (1896) 23 I.A., 1, 18 All., 146;
Rup Narain v. Gopal Das (1909) 36 Cal., 780, 36 I.A., 103; Basappa
V. Fakirappa (1922) 46 Bom., 292 explaining (1920) 44 Bom., 488;
Akkawa v. Say ad Khan Mate khan (1927) 51 Bom., 475 F.B.; Fate
Singh V. Thakur Rukmani (1921) 45 All., 339 F.B.; Ramakottayya v.
Viraraghavayya (1929) 52 Mad., 556 F.B.; Indaijit Singh v. Jaddu
(1931) 55 All., 157; Babu Singh v. Rameshwar Baksh (1932) 7 Luck.,
360; Moti Singh v. Ghandarp Singh (1926) 48 AIL, 63 (where an
agreement by a reversioner with the widow during her lifetime con-
cerning the devolution of the estate was held binding on the ground
of estoppel).

Estoppel of
reversioner.

804

woman’s estate.

[chap, xvii,

Actual
reversioner
not estopped.

the widow executed three deeds on the same day. By the first,
she gave a property to her brother* by the second she sold
half of another properly to the next presumptive reversioner
and by the third she sold the othei half of that property to
her son-indaw*. The next presumptive reversioner had attested
the deed in favour of her brother and the sale in favour of
her son-in-law in such circumstances as would lead to the
conclusion that all the three deeds formed part of one transac-
tion. It was held by the Judicial Committee, that the rever-
sioner who survived the widow, and consequently his legal
representatives were precluded from disputing the two aliena-
tions in favour of the brother and the son-in-law {n) .

^ 660. The actual reversioner at the death of the widow
is not precluded from questioning the alienation even when he
happens to be the son or grandson of the consenting rever-
sionei (o). The view that was taken in some of the cases that
an eventual reversioner, if he happens to be the son of the
reversioner who consented, claims ihiough him is opposed both
to principle and authority (/?). The individual conduct of the
reversioner himself may be such as to preclude him
from asserting his title as reversioner (q) It is open to the
actual reversioner to elect to abide by the alienation or to
treat it as a nullity (r) ; where a reversionci after he becomes
entitled to possession treats the alienation as good, he will be
held to his election (5) In Rangasami Gounden v Nachiappa
Gounden, the actual reversioner taking from the alienee
a mortgage of the property was held not debarred from assert-
ing his own title U).

in) (1927) 54 I A, 396, 52 Bom, 1.

( 0 ) Mt Binda Kuer v Lalita Prasad AIR. 1936 P.C , 304 41

C.W N.. 761, Ramamurthy v Bhuna banka/a Rao (1938) 1 M L ] , 296;
Ramesch (/handra v Sasi Bhusan (1919) 30 C.L J , 56, Veluhetti
Satyanarayana v Sajja P enkanna (1933) 65 M L J , 282, Ram Ratan
Lai V. Gangotn Prasad AIR 1935 All, 73, Thakur Prasad v Mt.
Dipa Kuer (1931) 10 Pat, 352, Imt see Mahadeo Prasad v Matra
Prasad (1922) 44 All, 44 In Baburao v. Tukaram A I.R 1931 B<»m ,
208, the plaintiffs were not reversioners but were stridhana heirs to
their step-mother and were bound by her election.

(p) Rangasami Gounden v. Nachiappa Gounden (1915) 46 I A.,
72, 42 Mad, 523.

{q) Marudanayakam v. Subramaniam AIR. 1935 Mad , 425, 68
MLJ, 643, (1918 ) 46 I A , 72, 42 Mad, 523, 538 mpra See

Mohammed Alikhan v Kanadal AIR. 1935 Cal, 625, Vellayammal v.
Palaniyandi 65 M L.J , 772.

(r) Subbaraghava Rao v. Adinarayana Rao 1932 M W N , 491.

(s) Rangaswami v. Nachiappa (1918) 46 I A, 72, 42 Mad., 523.
Kunja Behan v. Rasikalal Sen A.I.R. 1935 Cal., 495, 39 C W.N., 474.

(«) (1918) 46 I.A., 72, 42 Mad., 523.

PARAS. 668-669.] COMPROMISE BY LIMITED OWNER.

805

The reversioner whether male or female, consenting to or
joining in an alienation by the widow or other limited owner,
even before the reversion has fallen into possession, must be
taken to elect to hold the transaction valid and cannot after-
wards challenge it, and it is immaterial whether the consenting
reversioner receives consideration or not and whether the
alienation is for value or is in form or in substance a gift (^^).

§ 668 A. The rules relating to surrender and the power
of the widow to alienate with the consent of the next
reversioner will equally apply to the widow of an undivided
member who succeeds to his coparcenary interest under the
Hindu Women’s Rights to Property Act, 1937.

§ 669. The power of a widow or other limited
owner to compromise claims by or against the estate
represented by her was established in Mohendra Nath
v. Shamsunnessa (a) , which was approved by the
Judicial Committee in Ramsumran Prasad v. Shy am
Kumari (y)* A compromise made bona fide for the benefit
of the estate and not for the personal advantage of the limited
owner will bind the reversioner quite as much as a decree on
contest. A compromise in the nature of a family settlement
or arrangement entered into by a widow of a claim by the
reversioner where it is prudent and reasonable is binding on
the estate [w) . Whether the particulai transaction is a relin-
quishment of a spes successionis by a reversioner or a bona
fide settlement of disputed rights between the parties will

(fi) Fate Singh v. Thakur Rukmani (1921) 45 All., 339 F.B.;
Akkawa v. Say ad Khan (1927) 51 Bom, 475 F.B.; Ramakotayya v.
Viraraghavayya (1929) 52 Mad, 556 FB.; Barkhurdar v. Mt, Sat
Bharai (1934) 15 Lah., 563, 580; Babu Singh v. Rameshwar 7 Luck.,
360, A.IR. 1932 Oudh, 90; Baburao v. Tukaram A.I R. 1931 Bom., 208.

(a) (1915) 21 CLJ., 157.

(v) (1922) 49 LA, 342, 1 Pat., 741, 748; Mata Prasad v. Nageshar
Sahai (1925) 52 lA , 398, 47 All, 883, Rama Gowda Anna Gowda v.
Bhau Saheb (1928) 54 LA., 396, 402, 52 Bom., 1, 7; Raoji v. Kunjalal
(1930) 57 LA, 177, 54 Bom., 455, Khunni Lai v. Gobind Krishna
(1911) 38 LA, 87, 33 All, 356, Thakur Prasad v. Mt, Dipa Kuar
(1931) 10 Pat., 352; Bihari Lai v. Dand Hussain (1913) 35 All., 250;
Himmat Bahadur v. Dhanpat Rai (1916) 38 AIL, 338; Kanhaiya Lai v.
Kishori Lai (1916) 38 AIL, 679; Upendra Nath v. Gurupada (1929)
34 C.W.N., 404; Ravji Andu v. Ram Krishna A.I.R. 1928 Bom., 14.

(tv) Mata Prasad v. Nageshar Sahai (1925) 52 I. A., 398, 47 AIL,
883; (1911) 38 LA., 87, 33 AIL, 356 supra, Musammat Hiran v. Mt,
Sohan Bibi (1914) 18 C.W.N., 929 A.I.R. 1914 P.C, 44; Vpendra Nath
V. Bindesri (1915) 20 C.W.N., 210; Sureshwar Misser v. Maheshrani
(1921) 47 LA., 233, 48 Cal., 100; Angamuthu v. Sinnapennammal
(1938) M.W.N., 44.

Widow’s
powers of
compromise.

£06

woman’s estate. [chap. XVII,

depend upon the substance of the transaction and not upon
the form given to it by the parties (a;).

Where the reversioner had no belief that he had any valid
claim, any compromise by the limited owner by which he
obtains a part of the estate will not be binding upon the actual
reversioners; for in that case it will be an alienation pure and
simple without necessity (y). A compromise of disputed
claims does not amount to an alienation. It is based on the
antecedent title of the parties which it acknowledges and
defines ( 2 ). A family arrangement or settlement must be
one concluded with the object of settling bona fide disputes
arising out of conflicting claims to property which were either
existing at the time or were likely to arise in the future (a).

A person claiming to be a reversioner who has induced the
widow to enter into a compromise and has taken a benefit
under it is precluded from questioning it (6). Of course it is
not open to the widow and the reversioners acting together to
convert the widow’s estate from a qualified into an absolute
one (c) nor a fortiori to the widows of two divided

ix) Arunachalathammal v Esakki Animal (1934) 67 M.LJ , 463,
Kamaraju v. V enkatalakshmipati (1924) 49 MLJ, 296

(y) Obala Kondama Naicker v Kandasami (1924) 51 I A, 145,

47 Mad, 181, Anup Narain Singh v Mahabir Prasad Singh (1918)
3 Pat L.J , 83, Baijnath Rai v Mangla Prasad (1926) 5 Pat, 350,
See Giinjeshwar K unwar v Durga Prasad Singh (1918) 44 I A , 229,
45 Cal . 17.

( 2 ) Ram Mewa Kunwar v Ram Hulas Kumvar (1875) 1 I A, 157,
166, Khunni Lai v Gobind Krishna (1911) 38 I A , 87, 102-103, 33
All, 356, Bihari Lai v Band Husain (1913) 35 All, 250; Him mat
Bahadur v Dhanpat Rai (1916) 38 All, 335, Kanhaiya Lai v. Keshore
Lai (1916) 38 All, 679, Siireshwar v. Maheshrani (1921) 47 I A , 233,

48 Cal., 100.

(а) Basant Kumar v Ramshankar (1932) 59 Cal, 859 (there must
be either a dispute or at least an apprehension of a dispute) , Rajpali
Kunwar v. Sarju Rai (1936) 58 All, 1041 FB , Pokar Singh v. Dulari
Kunwar (1930) 52 All, 716 (the existence of a family dispute is not
essential to the validity of a family arrangement) , Joges Chandra v.
Prasanna Kunwar AIR 1932 Cal , 664 , Madan Lai v. Dewan Chand
A.I R 1938 Lah., 163, dissenting from 58 All , 1041 F.B. supra

(б) Kanhai Lai v Brij Lai (1918) 45 I.A., 118, 123, 40 All,

487; Hardei v. Bhagtvan Singh (1919) 24 C W.N , 105 P.C , Ram
Gouda V. Bhau Saheb (1927) 54 I A, 396, 52 Bom, 1, Kanti

Chandra Milker ji v Al-i-Nabi (1911) 33 All., 414, Nasir-ul-Haq v.
Faiyaz uLRahman (1911) 33 All, 457, Barati Lai v. Salik Ram (1915)
38 All, 107; Chahlu v Parmal (1919) 41 All., 611; Olati Pulliah
Chetti V. Varadarajulu (1908) 31 Mad., 474. In Bahadur Singh v.
Ram Bahadur (1923) 45 All, 277, the sons were held bound because
they ratified the arrangement after their father’s death and took benefit
under it.

(c) Thakur Prasad v. Mt Dipa Kuar (1931) 10 Pat., 352;

Nagappa v. Naranappa (1925) 48 M.L.J., 461.

PARAS. 669-670.] widow's representation in suits.

807

«ons acting together {d). The powers of co-widows
or co-heiresses have already been discussed (e).

§ 670. A widow or other limited owner during her life-
time represents the whole inheritance and a decision in a suit
by or against the widow as representing the estate is binding
on the reversionary heir. As was observed in the Shivagunga
case, “the whole estate would for the time be vested in her,
absolutely for some purposes, though in some respects for a
qualified interest; and until her death it could not be ascertain-
ed uho would be entitled to succeed. . . It is obvious that
there would be the greatest possible inconvenience in holding
that the succeeding heirs were not bound by a decree fairly
and properly obtained against the widow” (/). In Risal
Singh v. Balivant Singh, the principle of law to be applied
in such cases was re-stated: “Where the estate of a deceased
Hindu has vested in a female heir, a decree fairly and properly
obtained against her in regard to the estate is, in the absence
of fiaud or collusion, binding on the reversionary heir’' (g).
The rule of res judicata therefore applies, even if sec. 11 of
the Code of Civil Procedure with its explanation vi, is not
strktly applicable (A).

The principle of res judicata laid down in the Shivagunga
case (i) IS not limited to decrees in suits contested to the
'Cnd (y). It is therefore competent to the widow to enter into

' (d) Chimanlal v, Nairatlal A.l.R. 1935 Bom., 131.

(e) Ante §§ 531, 535.

Katama Nachiar v. Raja of Shivagunga (1863) 9 M.l.\., 539,
564, “Unless it could be shown that there had not been a fair trial
of the right in that suit, or in other words, unless that decree could
fidve been successfully impeached on some special ground, the rever-
sioners are bound by such a decree.” Nagendra v. Kaminee (1867)
11 M.I.A., 241; Pertab Narain v. Tnlokmath (1884) 11 I.A., 197, 207,
11 Cal., 186, 197; Han Hath v. Mothurmohun (1894) 20 LA., 183,
21 Cal., 8, Parbati v. Baijnath A.I R. 1936 Pat., 200; Ram Bhubanesh-
tvari V. Secretary of State A.l.R. 1937 Pat., 374, Madivalappa v.
Subbappa [19371 Bom, 906.

{g) (1918) 45 I.A., 168, 178, 40 All , 593, 603 followed in Vaithia~
linga Mudahar v. Srirangath Anm (1925) 52 I.A., 322, 327, 48 Mad.,
883 and in Munni Bibi v. Tirloki Nath (1932) 58 I. A., 158, 167. 53
All. 103, 112-113.

(A) (1918) 45 I.A., 168, 178, 40 AIL, 593 supra affg. 37 AIL,
496 F.B.

(0 Ganga Narain v. Indra Narain (1917) 25 C.L.J., 391; Sarju
Prasad v. Mangal Singh (1925 ) 47 AIL, 490.

0) Per Mookerjee, J., in Mohendra Nath v. Shamsunnessa (1914)
21 C.L.J., 157, 163 citing Khunni Lai v. Gobind (1911) 38 I. A., 87,
33 AIL, 356 and Hiran Bibi v. Sohan Bibi (1914) 18 C.W.N., 929
P.C.; Ramsumran Prasad v. Shyam Kuman \l922) 49 I.A., 342, 1
Pat., 741. The contrary view in Ram Sarup v. Ram Dei (1907) 29
All., 239, 241, Mahadevi v. Baldeo (1908) 30 AIL, 75 and in Rajlakshmi
V. Katyayani (1911) 38 Cal., 639, 672 is not good law.

Representation
of the estate.

Res judicata.

808

WOMAN S ESTATE.

[chap xvir.,.

Personal suits
do not bind
estate.

a compromise in the course of the suit bona fide in the
interest of the estate and not for her personal advantage and a
decree passed on such compromise is binding upon the rever-
sioners (A). She is not bound at her peril to pursue the
litigation to the ultimate Court of appeal (/) . So also a decree
passed on an awaid will bind the reversioners (m ) . But
where the obligation sought to be enfoiced against the estate
is one of her own cieation. any compromise by her would
stand on the same footing as her original alienation oi con-
tract (m^),

671. In order that the decree mav have the effect of
res judicata, the suit in which the decree was made should have
been in respect of the estate lepresented bv her (/?). This
distinction was pointed out in Kistioie v Jotindra

Mohun’ ‘"If the suit is siniplv foi a personal claim against
the widow, then merelv the widows qualified estate is sold,
and the reversionaiv inteiest is not bound by it (o). If, on
the other hand, the suit is against the widow in respect of
the estate, or for a cause which is not a nieie personal cause
of action against the widow, then the whole estate passes” (/>)..

Whole she sues oi is sued as lepiesenting the estate, no
difficulty can arise and the decision will be binding upon the
revel Sion even though the female hen was peisonally estopped
from denying the material facts, as for instance the validity
of an adoption made by hei, piovided the nieiits were tried
and the trial was fan and honest (cy). \^ heie the decision

(A) (1922) 49 I A, 342, 1 Pat, 711 supra, Mata Prasad v.
Nageshar Sahai (1925) 52 I A, 398, 47 All, 883, Subbammal v.
Avudaiy ammal (1907) 30 Mad, 3, Bhogaraju \ Addeppalli (1912)
35 Mad, 560, A^gkerji, J s iinciualificd dictum in Nirman v Fateh
Bahadur (1930) 52 All 178 erroneous, Niamat iillah, J, differs.

(/) (1914) 21 CLJ, 157, 163, 19 CWN, 1280, 1285 supra,
(1922) 19 I A., 342, 346 1 Pal , 741, 746 supra

(m) bfub Deo \ Ram Prasad (1921) 46 All, 637 (award), Rama

V. Daji (1919) 43 Bom, 249, (1907) 30 Mad, 3 supra (consent

decree), Gheiabai \ Bai Jaier (1913) 37 Bom, 172 (withdrawal of

appeal) , Gur yanak v Jai \arain i 1912) 34 Ml , 385 (er parte decree) ;

i>arju Prasad v Mangal (1925) 47 All, 490 (ca parte decree)

(mM Tirupatiraju v \ enkayya (1922) 45 Mad, 504 FB,
Meenambal \ iburubarnnial (1930) 53 Mad 750, 760

in) Dcijl y Sanibhu (1900 ) 24 Bom, 135, Veerabadra Ai\ar v..
Marudaga Na<hiar (1911) 34 Mad 188, Jhari v Bijai (1923) 4S
All, 613, Pramatha Nath \ Bhuban Mohan (1922) 49 Cal, 45;
Nagayva v Karuppayee AIR 1930 Mad, 344, Rajagopalan v Rama-
murthy (1923) 18, M , 491, Bhupendra Nath v Bhuan Chandra
(1936) 41 CWN. 392

(o) See Veerasami \ Polavariipu Nayudanima AIR 1925 Mad,
1270, Maharadhiraj Kamesivar v. Beni Madho Singh (1932) 11 Pat,
430.

(p) (1884) 11 I A, 66, 10 Cal, 985, 991

iq) Risal Singh v Balwant Singh (1918) 45 I A, 168, 179, 40
All, 593; (1923) 18 ML.W, 491 supra

PARA. 671.] ADVERSE DECREE ON GROUND OF LIMITATION.

809

itself was given on a ground personal to herself, it will be Decrees,
otherwise (r). A decree against the widow in respect of her
husband’s debts would not be a mere personal decree,
but would bind the reversionary estate (5). But where a
decree is passed against the widow personally, for a debt
which was incurred for necessity, it does not bind the rever-
sioners (t). Cases may occur where the widow litigates in
assertion of an absolute right inconsistent with her represen-
tative character (u) or enters into compromises which are not
fair and bona fide, but are designed to secure a personal benefit
for herself (v). In all such cases the decrees would not be
binding on the reversion.

An adverse decree against a female limited owner on the
ground that her right to recover possession was barred by
limitation has been held to bind the reversionary heirs though
their suit to recover possession on her death would not have
been barred, if she had not sued. In that case the reversioner
sued for possession of the estate and the defendant pleaded
that the daughter of the last male holder had sued him
ineffectually on the same title. The plaintiff alleged
that under the Limitation law (Act of 1871, art.

142, Act of 1877, art. 141) his right to sue accrued
on the death of the female heir. The Judicial
Committee set aside this contention. “The words, ^entitled to
the possession of immovable property’ refer to the then exist-
ing law. Under that law the plaintiff being bound by the
decree against Sampurna would not be entitled to bring a
suit for possession. The intention of the Law of Limitation
is, not to give a right where there is not one, but to interpose

(r) Risal Singh v. Balwant Singh (1918) 45 LA, 168, 40 All., 593;

Amrit Nfiravon v Gaya Singh (1918) 45 I A , 35, 45 Cal, 590; (1923)

18 M.L.W, 491 supra, Somasundaram v Vaithilinga (1917) 40 Mad,
846, 860; Bai Kanku v. Bai Jadav (1919) 43 Bom., 869.

(i) Barada Prasad v. Krishna Chandra (1934) 38 C.W.N., 33.

(/) Jugul Kishore v Jotindro (1884) 11 I.A., 66, 73, 10 Cal.,

985, Lain Mohun Pal v. Dayamoyi Roy A.I.R. 1927 P.C., 41, 45
C.L J., 404 affg., A.I R. 1925 Cal., 401; Giribala Dassi v. Srinatk
Chandra (1908) 12 C.W.N., 769; Trilochan Hazra v. Bakkeswar

(1912) 15 C T.J., 423; Rameswara Mondal v. Probabati Debi (1913)

19 C.WN., 313; Chandra Singh v. Gobinda Das A.I.R. 1937 Cal.,
280; V eerabadra v. Marudaga (1911) 34 Mad., 188; Sheikh Ghasit Mian
V. Thakur Panchanan (1936) 15 Pat, 798; Nagendrabala v. Panchanan
(1933) 60 Cal., 1236; Vasant Rao v. Behan Lai A.I.R. 1938 Nag., 225
(which reviews all the cases and fully discusses the point).

(u) Ramabin Santu v. Dajibin Naru (1919) 43 Bom., 249;

Janak v. Babu (1917) 2 Pat. L.J., 370.

(v) Ramabin Santu v. Dajibin Naru, ubi sup.; Tirupatiraju v.
Venkayya (1922) 45 Mad., 504 F.B.

woman’s estate.

[chap, xm

SIO

Effect of
execution for
debt of
female.

execution will only convey her own interest in the properU {x) .
But even though the foundation of the decree be a liability
which might bind the reversioners, that alone is not sufficient.
The suit must be so framed as to show that it is not merely
a personal demand upon the female in possession, but that it
is intended to bind the entire estate, and the interests of all
those who come after her (y). The question whether under the
sale of the right, title and interest of the widow in execution
of a decree, the whole interest or inheritance in the family
estate does or does not pass, depends on the nature of the
suit in which the execution of the decree takes place If the
suit IS in respect of a personal claim against the widow, then
the widow’s limited estate only is sold (:r). One view is that
where a decree is based on a widow’s contract which does not
give a charge on the husband’s estate, if the foundation foi the
decree be a debt of a proper character, the decree-holder would
be entitled to have the entire estate sold, and if in fact the
entire estate was sold and bought by the purchaser, his title
would prevail against the reversioners ia). But the sounder
view IS that though the original debt was for a necessary pur-
pose and the creditor might have recovered his debt from the
estate had he chosen to do so, in order to make the estate
liable, he oughtlo have framed his suit in a proper manner (b) .

a bar after a certain period to a suit to enforce an existing
right” (/c).

? 672. A sale in execution of a decree against a female
heir IS merely an involuntary alienation, and will be judged
of by the above principles. Where the suit is founded upon
a purely personal debt or contract of her own, the decree can
only be against her own person and property, and a sale in

(zc) Harinath v. Mohunt Mothoor Mohun (1894) 20 I A, 183,
21 Cal , 8, V aithilinga Mudaliar v. Srirangath Anni (1925) 52 I.A.,
322, 335, 48 Mad, 883, Ramdutt v. E. D, Sasson (1929) 56 I A., 128,
56 Cal. 1048.

(jc) Jugal Kishore v. Jotendro Mohun (1884) 11 LA., 66, 10 Cal.,
985, Narana Maiya v Vasteva (1894) 17 Mad, 208, Broja Lai v.
Jiban Krishnun (1899) 26 Cal, 285.

(}) See cases cited in note {t) supra, Parathnath v. Rameshwar
A I.R. 1938 All , 491

(z) (1884) 11 1 A, 66, 10 Cal, 985 supra.

(a) (1911) 34 Mad., 188 supra,

ib) Lalit Mohun Pal v. Dayamoyee Devi AIR 1927 PC, 41,
affg. A.I.R. 1925 Cal, 401, Sheik Ghasit Mian v. Thakur Panchanan
(1936) 15 Pat, 798, 809, Rameswar Mondal v. Provabati Debi (1913)
19 C W N., 313, 320. A decree obtained against a Hindu widow
for her husband’s debt is binding on the son who is not a party to
the suit, Ishan Chunder Mitter v. Buksh Ah (1872) 14 M.I A. 605;
Chaturbujadoss v. Rajamanicka (1931) 54 Mad., 212; Vasant Rao v.
Behan Lai A.I.R. 1938 Nag., 225.

PARAS. 672-673.] LIMITATION FOR REVERSIONER'S SUITS.

811

Of course the case would be different where the decree
against her under which the sale was held was for a debt
contracted by her husband.

§ 673. Where the widow or other holder of a woman’s
estate is dispossessed by virtue of any alienation or other act
of hers, her alienation or act being effectual for her own
life IS not adverse to the reversioner till her death, and does
not require him to bring a suit till then (c). Where
she is dispossessed, or prevented from taking possession, by
the hostile act of a third party, it was held under Act XIV
of 1859 that if her suit was barred by time, that of the rever-
sioner would also be barred (d) . When, however, the Acts
of 1871 and 1877 came into force, Courts held that
the law had been changed, and that the statute in every case
began to run against the reversioner from the death of the last
female heir. The point at last came for decision before the
Privy Council, and the decisions of the Courts in India were
affirmed (e). It is accordingly settled that the statute can never
begin to run against a reversioner in consequence of any pos-
session or dispossession of a female, so long as she holds as
heir of the last full owner. If she holds under a claim of title
hostile to the rightful heir, her possession is adverse from
the time it begins and the reversionary heirs who would be
entitled after the death of the rightful heir as well as the
rightful heir herself, will, on the expiry of twelve years, be
barred (/}. The case would be different if the female taking
possession claimed only the limited estate of a Hindu

(c) Pursiit Koer v. Pasut Roy (1882) 8 Cal., 442; Roy Radha
Kissan v. Naiiratan Lall (1907) 6 C.L.J., ^9^ y V enkataramanayya w.
Dejappa (1918) 34 M.LJ, 319, 321.

(d) Nobinchunder v. Guru Persad 9 W.R, 505, F.B., B.L.R. Sup.
Vol., 1008; (1925) 52 I.A., 322, 332, 333, 48 Mad., 883, supra;
Ramayya v. Lakshmayya A.I.R. 1938 Mad., 513.

(e) Runchordas v. Parvatihai (1899) 26 I A , 71, 23 Bom., 725;
Jamman v Tiloki (1903) 25 All., 435; Bijoy Gopal v. Krishna (1907)
34 LA., 87, 34 Cal., 329; Vaithialinga v. Srirangath Anni (1925) 52
I.A., 322, 48 Mad., 883, Jaggo Bai v. Utsava Bai (1929) 56 I A., 267,
51 AIL, 439, Bankey Lall v. Raghunath (1929) 51 All., 188, F.B.;
Shambu Prasad v. Mahadeo Prasad (1933) 55 All, 5.54; Shankar bhai
V Bai Shiv (1930) 54 Bom., 837; Bai Manchha v. Tribhovan A I.R.
1932 Bom., 434; Abinashchandra Ghose v. Narahari Methar (1930) 57
Cal., 289, dissenting from Aurabina Nath Tagore v. Manorama Debi
(1928) 55 Cal., 903.

(/) Mt, Lachan Kunwar v. Anant Singh (1895) 22 I.A., 25, 22
Cal, 445; Mahabir Per shad v Adhikani Koer (1896) 23 Cal,
•942 (P.C.); Sham Koer v. Dah Koer (1902 ) 29 I.A., 139, 29
Cal., 664; Ganga v. Kanhai (1919) 41 All., 154; Subbi v. Rama-
Jcrishnabhatta (1880) 4 Bom., 69; Kalicharan v. Piari (1924) 46
AIL, 769; Rikhdeo v. Sukdeo (1927) 49 AIL, 713; Mahajan v. MsU
Parbo (1930) 11 Lah., 424.

Execution for
debt of last
male holder.

Limitation.

[chap. XXIU

812

WOMAN^S ESTATE.

Persons
entitled
to sue.

Suits by
Reversioners.

woman (g). The reversioner who succeeds to the
estate or his legal representative has, from the death
of the widow, twelve vears under article 141 of the

Limitation Act, 1908, within which to sue for recovery of
immovable property and six years under article 120 to sue
for recovery of movable property (//).

§ 674. While it is open to a reversioner to wait
till the death of the widow to challenge her acts, for instance,
any adoption or any alienation made by her, he can pursue
his remedies against her acts even during her lifetime (i) .

Under the Hindu law, the death of the female

owner opens the inheritance to the reversioners, and
the one most nearly related at the time to the last full

owner becomes entitled to possession. In her lifetime,

howc\er, the reversionaiy right is a mere possibility or spes
successioms But this possibility is common to them all, for
It cannot be jneditated who would be the nearest reversioner
at the time of her death. The law, however, permits-
the institution of suits in the lifetime of the female owner for
a declaration that an adoption made by hei is not valid, or an
alienation effected bv her is not binding against the inherit-
ance {]) As a general rule such suits must be brought by
the piesumptive reversioner, that is to say, by the person who-
would succeed if the widow were to die at that moment (it).
Such a suit inav however be brought by a more distant
reversioner if those nearei in succession are in collusion with
the widow, or ha\e precluded thernsehes from inteifering If
the nearest ie\ersionary heir refuses, without sufficient cause,
to institute proceedings, or if he has precluded himself by
his own act oi;^ conduct from suing, or has colluded with the
widow, or ( oncurred in the act alleged to be wrongful, the
next presumable reversioner would be entitled to sue. In
such a case, the Court must exercise a judicial discretion in
detei mining whether the remote reversionei is entitled to sue.

(g^) Lajwanti \ Saja Chand (1924) 51 lA, 171, 5 Lab, 192:
Vengammas Chelamayya (1913) 36 Mad, 484 See ante §616

(/i) Kunchordas v Parvatibai (1899) 26 1 A , 71, 23 Bom, 725;
Pramatha Nath v. Bhoobun Mohan (1922) 49 Cal, 45

(i) As regards the period of limitation applicablt foi declaratory
suits challenging an adoption, see ante § 220

(;) V enkatanarayana Pillai v Subbamrna/ (1915) 42 I A, 125.
128-129, 38 Mad, 406, 410-411, Janaki Ammal v N aray anasanii Ayyar
(1916) 43 I A , 207, 39 Mad, 634, baudagar Singh v Pardip N aray an
(1917) 45 I A. 21, 45 Cal. 510

(A) Rani Anund Koer v Court of Wards (1881) 8 I A , 14, 6 Cal,
764 cited in (1915) 42 I A , 125, 130, 38 Mad, 406 supra ^ Saudagar
Singh V Pardip Narayan Singh (1917) 45 I A, 21, 45 Cal, 510;
Raghavalu v. Kausalya A I.R 1937 Mad, 607, Javitri v Gendan Singh
(1927) 49 All, 779, Rama Row v. Kuttiya Goundan (1916) 40 Mad.,.
654

TARAS. 674-675.] reversioner's suit is representative.

813

and would probably require the nearer reversioner to be made
a party to the suit (Z).

Where the nearest reversioner is a minor, there Female
is nothing to prevent him from suing through a next reversioners,
friend (m). In Calcutta, Madras, Allahabad and Patna, it
has been held that where the nearest reversioner is a female
and would only be entitled to a limited interest, the reversioner
next to her is competent to sue (/i). It is open to the Court
either to dismiss the suit brought by a remoter reversioner,
when nearer reversioners are in existence and no exceptional
circumstances are made out, or in a proper case to require
the nearer reversioner to be made a party and allow the suit
to proceed on terms (o).

§ 675. A suit by the presumptive leversioner to set Suit is

aside an alienation or an adoption or in respect of any representative,
other act of the widow, injurious to the reversion, is
brought in a representative capacity and on behalf of all
the reversioners. The act complained of is to their common
detriment just as the relief sought is to their common benefit.

The right of the reversioner to sue is based on the danger to
the inheritance, to remove a common apprehended injury to

(/) (1881) 8 TA., 14, 6 Cal, 764, 772-773; (1915) 42 I.A., 125,
38 Mad, 406, Lahbhmi v Anantharama 11937J Mad., 948 F.B.;
Jiaj Liikhee v. Gokool (1870) 13 M I.A , 209, 224, Kooer

Goolab V. Rao Kurun (1871) 14 M.T A., 176; Rao Kurun v. Nawab
Mahomed, ibid., 187, 193, Jhandu v Tariff (1915) 37 All, 45 P.C.;
Gauri V. Gurshai (1880) 2 All, 41, Raghunath v Thakiiris (1882)
4 All, 16, Adi Deo v. Dukharam (1883) 5 All, 532, Balgobind v.
Ramkumar (1884) 6 All, 431, Madari v. Malki (1884) 6 AIL, 428;
Jhula V. Kanta Prasad (1887) 9 All, 441, Manmatha v. RohiUi (1905)
27 AIL, 406; Meghu Rai v. Ram Khelavan (1913) 35 All, 326;
Gumanan \. Jahangira (1918) 40 All, 518, Ghisiawan v. Mt. Ra]
Kimwari (1921) 43 AIL, 534; Sit a Saran v. Jagat (1927) 49 AIL,
815; Bandhan Singh v. Mt Daulata Kuar AIR 1933 AIL, 152; Ram
Tawakal v. Mt. Dulari A.I.R. 1934 AIL, 469; Chulhan v. Mt. Akli
A I.R. 1934 Par., 324; Viranwali v. Kiindan Lai (1928) 9 Lah., 106;
Gokulananda \. Iswarchotrai (1936) 15 Pat., 379. Where the nearest re-
versioner IS from poverty unable to sue, the reversioner next to him is
entitled to sue, Mata Prasad v. Nageshar Sahai (1925) 52 I.A., 398, 47
AIL, 883, Shankar v. Raghoba A.I.R. 1938 Nag, 97.
im) Kali Charam v. Bageshra (1925) 47 AIL, 929.

(n) Kandasami v. Akkammal (1890) 13 Mad, 195, Raghupati v.
Tirumalai (1892) 15 Mad., 422; Chidanibara Reddiar v. Nallammal
(1910) 33 Mad., 410; Abinash v. Harinath (1905) 32 Cal., 62; Bal-
gobind V. Ramkumar (1884) 6 AIL, 431; Raja Dei v. Umed Singh
(1912) 34 AIL, 207; Lakhpati v. Rambodh Singh (1915) 37 AIL, 350;
Deoki V. Jwala Prasad (1928) 50 AIL, 678, Ramyad v. Rambihara
(1919) 4 Pat. L.J., 734; but see Madan v. Malki (1884) 6 AIL, 428
and Ishwar Narain v. Janki (1893) 15 AIL, 132; Mussamat Viranwali
V. Kundan Lai (1927) 9 Lah., 106.

(o) Lakshmi v. Anantarama [1937] Mad., 948 F.B.

814

WOMAN S ESTATE.

[chap. XVII,

Decree for
or against
presumptive
reversioner.

the interests of all the reversioners, presumptive and contingent
alike. On the death, therefore, of the presumptive reversioner
the next presumptive reversioner is entitled to continue the
action instituted by the former (p). The contingent re\ei-
sioners mav also be joined as plaintiffs in the presumpthe
reversioner’s suit (gr).

As the result of a suit brought by a reversioner, whether
favourable or adverse, affects the reversioners as a body, it has
been held that any issue which is finally determined in such a
suit IS res judicata under explanation VI to section 11 of the
Code of Civil Procedure, 1908, m any subsequent suit bv
another reversioner. It is immaterial that the plaintiff in the
second suit does not claim through the plaintiff in the first (r).
Any decision given in a suit instituted by a reversioner that
an adoption or an alienation is invalid will, of course, enure
for the benefit of the actual reversioner after the widow’s
death as against the person setting up the adoption oi aliena-
tion ( 5 ) .

§ 676. During the lifetime of the limited owner, a
reversioner is not entitled to sue foi a declaration that
he IS the next reversioner. Though he has the right as next
reversioner to sue on behalf of the reversioners for the protec-
tion of the estate, and his status as a reversioner may be denied
and put in issue, a declaration that he is the neaiest rever-
sioner cannot be made. Such a declaration would necessarily
be premature during the widow’s lifetime and might be
futile (/).

(p) V enkatanarayana Pdlai v. Subhammal (1915) 42 I A, 125,.
129, 38 Mad., 4Q|?. 411.

iq) Har Lai v. Han Singh AIR 1931 All., 630, Rameshwar v.
Mt Ganpathi Devi AIR 1936 Lah , 652, see Thakur Prasad v. MsL.
Dipa Kuer (1930) 10 Pat., 352.

ir) (1915) 42 I A., 125, 38 Mad, 406 supra ^ Kesho Prasad Singh
v Sheo Pragash Ojha (1924) 51 I A., 381, 46 All, 831 affg (1922)
44 All, 19, Mata Prasad v Nageshar Sahai (1925) 52 I A , 398, 47
All, 833, Bansidhar v. Dulhatia (1925) 47 All, 505, Khan Muhammad
v Umar Din (1924) 5 Lah, 421, Thakar Singh v Mst. Uttam Kaur
(1929) 10 Lah., 613, Punnamma v. Perrazu (1906) 29 Mad, 390 FB.;
Kesho Prasad \ Sheo Pargash Ojha (1922) 44 All, 19 FB.,
Pramatha Nath v Bhuban Mohan (1922) 49 Cal , 45.

(s) Narain Das v Wary am Singh A.I R. 1928 Lah , 545
{t) Janaki Ammal v. Narayanaswami (1916) 43 I A., 207, 39 Mad,
634, 637 (where the reversioner’s title was put in dispute) , Katama
Nachiar v. Doraisingha (1875) 2 I A., 169, 15 BLR, 83, Thakurain
Jaipal Kunwar v. Bhaiya Indar (1904) 31 I A , 67, 70, 26 All, 238;
Sheo Parsan v. Ramnandan (1916) 43 I A., 91, 43 Cal, 694;
Saudagar v. Pardip Narayan (1918) 45 LA, 21, 45 Cal., 510, Rama^
Rao V. Raja of Pittapur (1919) 42 Mad, 219; Madan Mohun v. Thakur
Sree Natai Gour (1933) 37 C.W.N., 801; Lalu v. Fazal Dm (1923)
4 Lah., 106; see Desu Reddiar v. Srinivasa Reddi (1936) 59 Mad., 1052.

PARA. 677.]

ACTION TO RESTRAIN WASTE.

815

§ 677. An action against the female owner in possession
is only maintainable in respect of such acts of hers as are
injurious to the reversioners. They are of two classes: first,
acts which diminish the value of the estate; secondly, acts which
endanger the title of those next in succession.

First: — Under this head come all acts which answer to
the description of waste, that is, an improper destruction or
deterioration of the substance of the property. The right
of the reversioners to bring a suit to restrain waste by the
female owner was established for the first time, by an
elaborate judgment of Sir Lawrence Peel, C.J., in 1851 (w).
What will amount to waste has never been fully defined.
Illustration (m) to sec. 54 of the Specific Relief Act refers
to the destruction of property committed by any Hindu widow
without any sufficient justifying cause. The female heir is,
for all purposes of beneficial enjoyment, full and complete
ownei. She would have a full right to cut limber, open
mines and the like, provided she did so for the* purpose
of enjoying the estate, and not of injuring the reversion.
To entitle the reversioner to sue, she must appear not merely
to be using, but to be abusing, her estate; specific acts of
waste, or of mismanagement, or other misconduct, must be
alleged and proved. Unless this is established, the female
heir can neither be prevented from getting the property into
her possession, nor from retaining it in her hands, nor com-
pelled to give security for it, nor can any directions be given her
as to the mode in which she is to use or invest it (v). But
where such a case is made out, the heiress will be restrained
from the act complained of. In a very gross case, she may
even be deprived of the management of the estate, and a re-
ceiver appointed, not upon the ground that her act operates as
any forfeiture {w), but only upon the ground that she cannot
be trusted to deal with the estate in a manner consistent with
her limited interest in it In such a case the next heirs

(zi) Hurrydoss v. Rungunmoney Sev. 657; per Sir Barnes Peacock
C.J., in Nobm Chunder v. Ishu Chunder 9 W R , 509.

(r) Hurrydoss v. Upoornah (1856) 6 M,I.A., 433; Bindoo v. Bolie
1 W.R , 125, Grose v. Amirtamayi (1869) 4 B.L.R. (O.CJ.), 1, 12
W.R. (A.O.J.), 13. As to mining, see Subba Reddi v. Chengalamma
(1899) 22 Mad. 126.

(w) Per curiam, Rao Kurun v. Nawab Mahomed 14 M.I.A , 198,
10 B L.R., 1; Katamma Nachiar v. Doraisingha (1875) 2 LA., 168,
191; Janaki Ammal v. Narayanaswami (1916) 43 I.A., 207, 39 Mad.,
634; Mata Prasad v. Nageshar Sahai (1925) 52 I. A., 398, 410, 47
All., 883; Renka v. Bholanath (1915) 37 All., 177.

(jc) Venkamma v. Narasimham (1921) 44 Mad., 984, following
Radha Mohun Dhar v. Ram Das Dey (1869) 3 B.L.R., 362; Shankar-
bhai V. Bat Shiv (1930) 54 Bom., 837.

To restrain
waste.

Waste by
heiress m
possession.

816

woman’s estate.

[chap. XVII,

AUandonmcnt
of right.

Declaratory

suits.

may be appointed as receivers, when they appear to be the
fittest persons to manage for the benefit of the estate; and the
Court will ordinarily, except in very exceptional cases, direct
the whole proceeds to be paid over to her and not merely an
allowance for her maintenance {y}

A widow is under a clear duty to abstain fiom wasting
the corpus of her husband’s estate, movable and immovable. If
she has made away with the movable corpus of the husband’s
estate, she can be ordered to replace it if she is in a position
to do so, allowing her, of course, to enjoy the income of the
fund replaced. And transferees from the widow, without
consideration, of jewels or other movable corpus of the estate
of the last male owner can be ordered to replace any part of
it that can be traced to their hands (z). In one case the widow
had given up the estate to a third paity, under threat of legal
proceedings, and lefused to have anything to do with the assets.
It was held that the reversioners might sue the widow and the
third party to have the possession restored to proper custody,
and that a manager should be appointed to collect, account
for, and pay into court, the assets, to be held for the ultimate
benefit of the heirs who should be entitled to succeed at the
death of the widow (a).

Of course the reversioners will be equally entitled to
restrain the unlawful acts of persons holding under the female
heiress ( i ) . But the mere execution and registration of a
deed as between strangers without any ulterior act directed
against the widow in possession oi without any^ mjuiy to the
reversion gives no light of action against them to the rever-
sioner, either foi a declaration of title or otheiwise (c)

§ 678 S^JroND: — During the life of the limited owner, the
reversioners can sue to remove that which would be a bar to
his title when it vested in possession The commonest suits
which are brought by leversioners are suits for a
declaration that an alienation or suriender made by the

(y) Jamna Prasad v Mt Diirgadei AIR. 1933 All, 138, (1921)

44 Md<l , 984 supra, Maharam v Niinda Lai 1 BLR (ACJ), 27,

10 WR, 73, Shania Soonduree v Jumoona 24 WR, 86

(z) (1921) 44 Mad, 984 supra, following Sinclair v Brougham

(1914) AC, 398, (1930) 54 Bom, 837 supra

(a) Radha Mohun v Ram Das (1869) 3 BLR (ACJ), 362, see
Joymooruth v. Buldeo 21 W R , 444 Venkanna v Narasimhan (1921)
44 Mad, 984, Shankar Bai v Bai Shu (1930) 54 Bom, 837, 847.

(b) Govindmam v. Shamlal BLR Sup. Vol 48, Kamavadhim v.
Joysa (1866) 3 MHC, 116, (1921) 44 Mad, 984 supra, see also
Sinclair v Brougham (1914) A C 398

(c) Sura] Bansi v. Mahipat 16 W.R , 18.

PARAS. 678-679- A.] declaratory suits by reversioners.

817

limited owner is invalid, or that an adoption, which is set
up, is invalid or never in fact took place (d). The next
reversioner can either institute such a declaratory suit
or wait till the widow’s death and sue for the recovery of
property (e). A reversioner is also entitled to sue for a
declaration as to the limited nature of the widow’s interest
in certain properly to which she asserts an absolute title
under the will of another person (/). He can also sue for
a declaration that a will giving the widow an authority to
adopt was never in fact executed (g). It has also been held
that in exceptional circumstances a leversioner can sue to
impugn a transaction by the last male holder during the
widow’s lifetime, as for instance where she lefuses to sue

to set aside her husband’s invalid sale colluding with the

alienee to enable him to acquire title by adverse posses-
sion (gi).

§ 679. The Specific Relief Act (I of 1877), sec. 42 pro-
vides that “any person entitled to any legal character, or to any
right as to any properly, may institute a suit against any
person denying, or interested to deny, his title to such charac-
ter or right, and the Court may, in its discretion, make therein
a declaration that he is so entitled, and the plaintiff need not

in such suit ask for any further relief. Provided that no

Court shall make any such declaration where the plaintiff,
being able to seek further relief than a mere declaration of
title, omits to do so”. Illustrations (e) and (f) to the section,
which expressly mention suits by reversioners for declaratory
reliefs in connection with adoptions and alienations by
widows show that the section is intended to reproduce the
previous law.

§ 679 A. A reversioner’s suit during the life of the female
owner for a declaration that an alienation made by her of

{d) Golab Singh v. Kurun Singh (1871) 14 176; Jumoonn

V. Bamasoonderai (1876) 3 I.A., 72, 1 Cal., 289; Saudagar Singh v.
Par dip Singh (1918) 45 I. A., 21, 45 Cal., 510; Muthukumarasami v.
Han Narayana (1927) 53 M.L.J., 601.

(e) Bijoy Gopal Mukerji v. Krishna Mahishi (1907) 34 I.A , 87,
34 Cal., 329; Raghubir Singh v. Jethu Mahton (1923) 2 Pat., 171.

(/) Thakurain v. Bhaiya Jnder (1904) 31 I.A., 67, 26 AIL, 238;
Umrao Kunwar v. Badri (1915) 37 AIL, 422, Ganga v. Kanhai Lai
(1919) 41 AIL, 154, Deoki v. Jawala Prasad (1928) 50 All , 678.
See 1 AIL, 688, where a nuncupative will was set up. Surayya v.
Subbarnnia (1920) 43 Mad., 4 overruled by the Full Bench m Pudiava
V. Pavanasa (1922) 45 Mad., 949 F B. on another point. Das Mai v.
Ram Chand (1923) 4 Lah., 116.

(g) Padmanabhudu v. Buchamma (1918) 35 M.L.J., 144, Surayya
V. Annapurnamma (1919) 42 Mad., 699, Muthukumarasami v. Hari-
narayana (1927) 53 M.L.J., 601.

(gi) Shankarbhai v. Bai Shiv (1930) 54 Bom., 837, 858.

54

Specific Relief
Act.

818

woman’s estate.

[chap. XVII,

Equities on
setting aside
her act*'

immovable property is void “except for her life or until her
marriage” has to be brought within twelve years from the
date of the alienation (art. 125 of the Limitation Act, 1908).
Article 120 providing six years will apply in respect of other
suits brought by the reversioners, for instance, to restrain
waste (h). According to the Madras High Court, the suit to
set aside an alienation is a representative one on behalf of all
the reversioneis and all of them have but a single cause of
action which arises when the alienation is made (/iM. This
view has been doubted by the Calcutta High Couit (i) , A
reversionei who was not in existence at the time of the
alienation can, it has been held, sue within six yeais fiom
the time when his right to sue aiciues (y) Wheie
a suircndei by a female ownei is attacked as invalid, it will
be an alienation and a suit foi a declaration of its invalidity,
so far as immovable piopeity is conceined, will be governed
by article 125 (A*) Where the surrender is valid, the lever-
sioner who is entitled to possession, will have twelve yeais or
six years, according as the pioperty alienated by the widow
which he seeks to letovei is immovable oi movable, under
aiticle 144 oi aiticle 120. Article 141 will not apply to a
suit befoie the female o^^nel dies

^ 680 Where a purchaser fiom a Hindu widow

acts in good faith and aftei due enquiiy, and pays
a fair puce for the propcity sold, so that the sale

itself is justified by legal necessity, he is undei no

obligation to inquiic into the application of the money paid

by him and is, theiefoie, not bound to make lepaymenl of

(/?) Venhanna \ ^arablmham 44 Mad, 981

(/j^) Varamma v. Gopaladasayya (1918) 41 Mad., 659 FB, follow
ing V enhatanaruyana v Subbammai (1915) 38 Mad., 406 PC, and
Janaki v. Noroyanosami (1916) 39 Mad, 634 PC and oveiruling
Govinda v Thayammal (1905) 28 Mad, 57, Veerayya v Gangatnina
(1913) 36 Mad, 570, an<l Narayana v Rama (1915) 38 Mad, 396,
Kamakshi \ Poo( hanwial AIR 1925 Mad, 567, Vcnkatasiibbayya v
Subra/nanyam A.I R 1925 Mad, 911, Nevlnkanta v. (.hinna Animal
(1927) 52 MLJ, 13, Rajagopala v Ramanuja (1936) MWN, 339,
44 ML.W, 208, Mt Jagraiu v Gaya AIR 1933 All, 856 (Ail 120
applied), (.hiragli Din v. Abdulla (1925) 6 Lah , 405, Mt Nandan

V Wazira (1927) 8 Lali , 215 (Ait 125 applied), Mt. W idyavati v.
Mt Rahrnat Bi AIR 1937 Lab, 760 (Art 125 applied); Kanhya Lai

V Mt Hira Bibi (19.35) 15 Pat, 151 (Art 120 applied), Damar
Mahton v. Jagdij) A.I R 1936 Pat., 535 (Ail 120 applied), Baldco
Da'i V Raghunandan Das AIR 1937 Pat, 105

(/) Das Ram Choivdhuiy v Tirtlia Nath Das (1924) 51 Cal., 101
(y) Sital Rant v Adalat Rant AIR. 1935 Pat, 256.

(A) Kanshi Rani v. Mt Chet Kaur (1929) 10 Lah, 237, following
Sheo Singh v. Jeoni (1897) 19 AIL, 524 (Art. 125 applied).

IPARA. 680.]

EQUITIES.

819

such part of the price as is not proved to have
been applied for purposes of necessity (§367) (Z). Where,
owing to the alienee’s knowledge or defective inquiry or other
circumstances, the sale is not justified by necessity but part
of the consideration is advanced by him for a binding
purpose, then the reversioner is entitled to have the alienation
set aside on his paying the amount (m). In Shanti Kumar Pal
V. Mukund Lai MandaL the Calcutta High Court held that
a deed of surrender was, as such invalid but treating it as a
sale based in part on legal necessity, set it aside on the
condition that the reversioners paid the purchaser that
portion of the price which was justified by necessity (n).
As was observed in Felaram Roy v. Bagalanand
Barter jee, it would manifestly be impossible and possibly pre-
judicial to the interest of the estate, if the widow were held
to be bound in every instance to sell property for payment
of a debt due from her husband for exactly the sum due to
the creditor (o) and the Courts will have to see in each case
whether, having regard to all the circumstances, the alienation
was a proper one (p).

Oidinarily, the proper decree of the court is to set aside
the sale, if it was not justified and not to make an order for
payment by the reversioner in the absence of equities or
special circumstances such as those above mentioned (g).

The absence of an offer by a reversioner in his plaint to
pay such amount as may be binding on him is no ground for
refusing the declaration as to the invalidity of the alienation
and the court will make a charge for such part of the amount
as is justified by necessity (/).

(/) Suraj Bhan Singh v. Sah Chain Sukh (1928) 32 C.W.N., 117
P.C., Medal Dalavoi Thiriunalaiyappa v. Nainar Tevan (1922) 27
C.W.N., 365 P.C.; Balknshna v. Hira Lai (1919) 41 AIL, 338; Sri
Krishn Das v. Nathu Ram (1927) 54 LA., 79, 49 AIL, 149, Niamat
Rai V. Din Dyal (1927 ) 54 I.A., 211, 8 Lah., 597; Ram Sunder v.
Lachhmi Narain (1929) 51 AIL, 430 P.C.; Buta Mai v. Gopal Singh
(1930) 11 Lah., 164.

(m) See Nagappa Chettiar v. Brahadambal (1936 ) 62 I.A., 70, 58
Mad., 350.

in) (1935) 62 Cal., 204 relying on Deputy Commr. of Kheri v.
Khangar Singh (1906) 34 LA., 72, 29 AIL, 331, Jagannadham v.
V ighneswarudu (1932) 55 Mad., 216; but see Ram Asrc Singh v.
Ambica Lai A.I.R. 1929 Pal. 216; Jagannath v. Danwdar A.I R. 1932
AIL, 37.

{o) (1910) 14 C.W.N., 895.

(p) Naman Lai v. Har Bhagwan (1921) 2 Lah., 357; Krishna v.
Hira Lai (1919) 41 AIL, 338.

iq) Mt, Alodhan Kuer v. Naurangi Singh A.I.R. 1938 Pat., 194.
(r) Paparayudu v. Rattamma (1914) 37 Mad., 295; Arunachela
Counden v. Kuppanadha (1918) 14 M.L.T., 391. See ante § 403.

820

woman’s estate.

[chap. xvn.

Improvemenl'5
by alienee

In Nat ayanas warm Ayyat \ Rama Ayyar, the Judicial
Coimniltee held that where a gift is made by a Hindu widow
to a slrangei and the donee sells the property, and the
purchasei makes improvements believing in good faith that
he is the owner, he is entitled, on the alienation being set
aside, to the alternative rights mentioned in section 51 of the
Transfer of Pioperlv Act, 1882, that is to say, to the value
of the impiovements effected by him ( 5 ). Where a Hindu
widow sells property without legal necessity and the purchaser
causes peinianent improvements to be made whereby the jama
of the property is increased, the mcieased rent that is properly
attributable to the improvements should be set off against
any mesne profits claimed against him. In other words, the
reversioner would be bound to pay the pui chaser the amount
by which the value of the property has been enhanced by
impiovements effected b\ him (/) The Bombay High Couit
has held that the position of a mortgagee from a widow who
improved the property wnth her consent cannot be distinguished
from that of a purchasei, so as to prevent an equity from
arising in favour of the mortgagee (z/). But it has been
held by the Allahabad High Couit that a mortgagee from a
limited owner is not entitled to claim the value of any improve-
ments eflected by him as section 51 applies only to a trans-
feree believing in good faith that he is absolutely entitled to
the property (z;)

The question whether a puichasei is entitled to compensa-
tion for money spent upon the properties purchased by him
cannot arise till the death of the limited owner [w) ,

is) (1930) 57 1 A, 305, 53 Mad, 692

it) Kidar Nath v Mathii Mai (1913) 40 Cal, 555 PC , Bhagwat
Dayal \ Ram Ratan AIR 1922 PC, 91, 20 C W.N., 257. See also
Someshvar > Someshvar (1923) 50 Bom, 1, Gangadhur v. Rachappa
A III 1929 Bom, 246, but Suleman Saheb v Peruhevla AIR 1925
Mad, 670, 21 MLW, 115

{u) Shidappa v Pandurang Vasudev (1923) 47 Bom, 692, dis-
tinguishing Vrijbhukandas v. Dayarani (1907) 32 Bom, 32, but see
Ramappa \ y ellappa (1928) 52 Bom, 307

(r) Hans Raj \ Miibammat Somni (1922) 44 vVll , 665, 667 div
tingiiishing AIR 1922 PC, 91 supra, Rajrup kiinivar v. Gopi (1925)
47 All, 430 (case of improvement effected by a lessee under a per-
manent lease from a Hindu widow) , Raj Kishorc Das v Jaint Singh
(1911) 36 411, 391-5 (lease)

{w) Lala Rup Narain v Copal Devi (1909) 36 1 A , 103, 36 Cal.,
780, 798.

CHAPTER XVIII.

MAINTENANCE

§ 681. The importance and extent of the right of main- All members
tenance necessarily arises from the theory of an undivided entitled,
family. The head of such a family is bound to
maintain its members, their wives and their children, to
perform their ceremonies and to defray the expenses of their
marriages (a) ; in other woids, those who would be entitled
to share in the bulk of the propel ty aie entitled
to hd\e all their necessary expenses paid out of its income(6K
But the light of maintenance goes farther than this, and in-
cludes persons who bv reason of personal disqualification are
not allowed to inherit, such as the idiot, the madman and
the rebt(c). Such persons are excluded from inheritance
and a share on partition but are given, in lieu thereof, main-
tenance {d) , While their male issue, if not disqualified, are
entitled to inherit, the wives and daughters of disqualified
persons are, till mairiage, entitled to be maintained (e).

Misbehaviour, or ex-communication from caste on the Loss of caste,
ground of misbehaviour, does not of itself disentitle the
ofTendei to maintenance (e^).

(а) Mann, TX, 108, Naradd, XIII, 26-28, 33, Vaihuntam v. Kalla-

piran (1900) 23 Mad., 512 and (1903) 26 Mad., 497, Sundrabhai
V Shivnarain (1908) 32 Bom, 81, Kamesivara Sastri v Veera-

charlii (1914) 34 Mad, 422, Hhagwan Singh v Kewal Kaur (1927)
8 Lab., 360.

(б) This passage is cited with approval in Rama Rao v. Raja of
Pittapiir (1918) 45 I.A , 148, 153, 41 Mad, 778, 784.

(c) (1918) 45 I.A, 148, 153, 154, 41 Mad., 778, 784 supra. As to
disqualihed persons, see Chapter XV.

id) (1918) 45 I.A., 148, 153, 41 Mad., 778, 784, Vellaiyappa Chetty
V. Natarajan (1931) 58 I. A., 402, 55 Mad, 1.

(e) Mami, IX, 108, Narada, XIII, 26-28, 33, Yajn., II, 140, 142;
Vishnu, XV. .32-34, Mit., TI, x, 12 15, Dayabhaga, V, 10, 11; D.KS.,
Ill, 7-17; V. May, IV, xi, 1-9, Rama Rao v. Raja of Pittapur
(1918) 45 I.A., 148, 153, 41 Mad, 778; Rani Soonder Roy v. Ram
Sahye Bhugat (1882) 8 Cal , 919; Natarajan v Muthiah (Ihettiar

A.I R. 1926 Mad., 261, 22 M.L.W . 650; Yeshvantrao v. Kashibai
(1888) 12 Bom., 26, 28.

(e^) Putanvitil Teyan v. Putanvitil Raghavan (1881) 4 Mad., 171;
R. V. Marimuthu (1881) 4 Mad, 243. See §692,

822

MAINTENANCE.

[chap. XVIII,

Illegitimale

son

§ 682 . Illegitimate sons, when not entitled as heirs, are
to be maintained (/) and maintenance for their lives
may be secured by a charge on the family estate
(g). For instance, the illegitimate son of a Hindu
belonging to one of the twice-born classes by a permanent
concubine (dasi) is entitled to maintenance as well
out of the joint family property as from the separate pro-
perty of his putative father (A). The illegitimate son of a
Sudra born to a permanent concubine ((/asi) , where his
father leaves no separate property is entitled to maintenance
out of the joint family property held by him and his co-
parceners (i). The illegitimate son of a Hindu born to a Hindu
woman, even if he be the offspring of adulterous intercourse
or of a woman not kept as a permanent concubine has been
held entitled to maintenance as against his putative father
during his lifetime and afterwards out of his separate and
joint properly (/). The right of the illegitimate son to
inaiiitenaiKe is purely personal and does not descend to the

(/) Mitak«<hara I, xii, 3, Miittusamy v V enkatambha (Ettiya-
puram (zamindari) (1865) 2 Mad HC, 293, affd (1868) 12 MIA,
203, Chuoturya v Sahub Purhulad (1857) 7 MIA, 18, Rahi v Govind
(1875) 1 Bom, 97, Viraramuthi v Singaravelu (1877) 1 Mad,

306, Kuppa V Singaravelu (1885) 8 Mad, 325, Hargohind v Dharam
(1884) 6 All, 329, Subramama Mudali v Vain (1911) 34 Mad, 68.
The Hindu law right only exist in ca«^e of sons who were born
Hindus. The illegitimate son of a Hindu by a Christian mother cannot
claim to be maintained, Lingappa v Esudasen (1904) 27 Mad, 13.
As to the statutory obligation to maintain a wife and children, legiti-
mate or illegitimate, see Criminal Procedure Code, 1898, §488, Kallu
V Kauselia (1904) 26 All, 326 It ceases on the death of the father,
Lingappa v Lsudastn (1904) 27 Mad, 13, Sitarain v Ganpat A.I.R.
1923 Bom , 38^ Maintenance granted for the illegitimate child may
be rightly and properly spent lor the maintaining of the joint home of
the infant and its mother, and no account will be ordered so long as
the infant is properly maintained, Bomivetsch v. Bomuetsch (1908)
35 Cal., 381.

(g) Ananthaya v. Vishnu (1894) 17 Mad, 160, Gopalasami v.
Arunachelam (1904) 27 Mad, 32, Subramama v Valu (1911) 34
Mad , 68

(A) Chuoturya v Purhlad (1857) 7 Ml A, 18; Roshan Singh v.
Balwant Singh (1900) 27 I.A , 51, 22 All, 191, Ananthayya v Vishnu
(1894) 17 Mad, 160, Vellaiyappa v Natarajan (1932) 58 I A., 402,
408, 55 Mad . 1

(i) V ellaiyappachetty v. Natarajan (1931) 58 I A , 402, 55 Mad., 1
affirming (1927) 50 Mad., 340.

(/) (1857) 7 M.I A , 18 supra; Panchat v. Zalim Singh
(1878) 4 I.A, 159, 3 Cal., 214, Muttuswamy v. Vencateswara (1868)
12 MIA, 203, Rahi v Govind (1875) 1 Bom, 97, Viraramuthi v.
Singaravelu (1877) 1 Mad, 306, Subramama v. Velu (1911) 34 Mad,
68, Ghana v Gereli (1905) 32 (ial , 479, Kuppa v. Singaravelu (1885)
8 Mad, 325, Hargobind v. Dharam Singh (1884) 6 All., 329, Chamava
V. hay a A.I.R. 1931 Bom., 492, 33 Bom, L.R , 1082.

PARAS. 682 - 683 .] RIGHT OF AVARUDDHASTRI.

823

legitimate son of the illegitimate son (fr). Nor does it extend,
apparently, to illegitimate daughteis (/).

The right of an illegitimate son under the Dayabhaga law
to maintenance would appear to cease on his majority (rn ) ;
under the Mitakshara law, he is entitled to maintenance for
life (n).

The quantum of maintenance to whic h the illegitimate .
son of a Sudra is entitled is fixed with reference to
the income of the estate, the status of the putative father and
the mode of life to which he was accustomed during his
father’s lifetime (o) .

§ 6f^3 A concubine who has been kept by a Hindu Concubine,
continuously upto the time of his death is entitled to niain-
tenam e from the property whether ancestial or acquired, of
her deceased paramoui (/;). She however loses her right foi
inconlmencc jiisi like a widow {q). In Bai Nagubai v. Bai
Monghibal, the Privy Council held that the light to mainten-
ance IS limited to one who among Hindus is pioperly
called avaruddhaslti (r). Neither a casual nor an adulterous
connection entitles a woman to maintenance. Nor can a claim
for maintenance be made by a discarded concubine against
her paiamour or against his propeity after his death (5).

To entitle her to maintenance, it is not necessary that the
conrubinc should have lived in her paramour’s house wdth

(/i ) Bahoant Singh v Hoshan (1896) 18 All, 253 affd in Roshan
V Balwant (1900) 27 J.A . 51, 22 All., 191.

(/) Parvati v. Ganpatraa (1894) 18 Bom, 177, 183, (1932) 58
I.A , 402, 55 Mad., 1 supra, affg. (1927) 50 Mad, 340.

(m) Nilnwney Singh v. Baneshur (1879) 4 Cal., 91.

(n) Hargobind v. Dharani Singh (1884) 6 All., 329; Kuppa v.
Singaravelu (1885) 8 Mad , 325.

(o) Rathinasahapathi v Gopala (1929) 56 M.L.J^., 673 dissenting
from Gopalasanu v. Arunachalam (1904) 27 Mad., 32, 36,

ip) Mit, II, 1, 27-28, Daya Bh., XI, 1, 48, V. May., IV, viii, 5,
Panthapagesa Oda^ar v. Kanaka Animal (1917) 33 M.L.J., 455,

Vrandruvandas v Y amiinahai 12 B H C , 229; Dayavati v. Kesarbai

A I.R 1934 Bom, 66, 36 Bom L.R., 61; Ningareddi v. Lakshmawa
(1902) 26 Bom.. 163.

{q) Yashvant Rao v. Kashibai (1888) 12 Bum., 26.

(r) (1926) 53 I.A, 1.5.3, 50 Bom., 604 reversing (1923) 47 Bom.,
401, “an avaruddhastri is a woman prohibited by the master from
intercourse with other men, with an injunction to slay at home, with
the object of avoiding any lap^e of service”. As to what her main-
tenance should cover, see Charandas v. Nagubai A.I.R. 1929 Bom., 452.

(s) Ramanarasu v. Buchamma (1900) 23 Mad., 282; Sikki v.

Vencatasamy (1875) 8 M II.C.R., 144; Khemkar v. Umiashankar

(1873) 10 Bom. H.C., 381, Ningareddi v. Lakshmawa (1902) 26

Bom., 163.

824

MAINTENANCE.

[chap. XVIII,

Aged parents
and minor

M)!!.

his family (t) , In Anandilal v. Chandiabai, it was held
that a kept mistress, whose husband is alive, is not an
avaruddhastri entitled to maintenance on the death of her
paramour (u) . Another condition of maintenance is imposed
m Rama Raja Thavar v. Papammal (v) that she must have
borne illegitimate children to her paramour; and reliance is
placed upon Khernkar v. Umiashankar {w) and Strange’s
Hindu Law (:r) . No such condition is imposed by the texts
whose only requirement is that she should be an avaruddha-
stri A bairen concubine is entitled to maintenance just as
much as a baiien widow.

§ 684 The maintenance of a wife C}'), aged parents (z)
and a minoi son (a) is a mattei of peisonal obligation aiising
from the \ei\ existeiKc of relation and quite independent
of the possession of anv piopertv. ancestral oi acquired (b).
A text of Mann cited in the Mitakshara and the Paiasara-
inadha\iva sa\s- ‘"It is declared 1)\ Maim that the aged mother
and father, the chaste wife and an infant child must be
maintained even by doing a hundred misdeeds” (c). So the

(t) (1926) 53 lA. 153, 50 Bom, 604, Charondas v Nagiibai
AIR 1929 Bom, 452, Dayavati v Kesarbai ATR 1934 Bom, 66, 36
Bom L R , 61

(//) (1924) 48 Bom, 203 explaining Khernkar v Umiashankar
(1873) 10 Bom. HC, 381
iv) (1925) 48 Mad, 805
Uv) (1873) 10 Bom 11 C , 381

(r) 1 Sira H.L 174 The Mitakshara's comment on Yajn , II,

290 deals with avariiddhastris (Setliir’s edn , 1104-1110) Mil, II,
I, 27-28 do not impose any such condition Neither Westropp, CJ,
nor Sir Thomas Strangt meant that d coni ubine was entitled to
maintenance oijily if she had borne children They probably meant
that in that < asp hei having been a concubine was easily established
(4) Jayanti Subbiah \ 4lanichi (1904) 27 Mad, 45, Savitribai v
Luxinubai (1878) 2 Bom, 573 F.B., Narbadabai v Mahadeo (1881)
5 Bom, 99, Appibai \ Khunji (.ooverji (1936) 60 Bom, 455.

(z) Narbadabai v Mahadeo (1881) 5 Bom., 99, as to molher-in-
law, see Bai Kauku v Bai Jadav (1884) 8 Bom, 15, Subbarayana v
Subbakka (1885) 8 Mad, 236, Bai Dayn v Natha Govindlol (1885)
9 Bom, 279 (step-mother), Kedar Nath v Heinangim (1886) 13 Cal,
336, Ghanaraj v Mt Tapibai AIR 1933 Nag, 57

(rt) Premihand \ Hulashchand (1869) 4 BLR, App , 23, 12
WR, 494, Hinniiat \ Ganpat (1875) 12 Bom HC, 94, Ammakannu
V Appii (1888) 11 Mad, 91, Bhoopati Nath Chakrovarti v Basanta
Kumaree (1936) 63 (’al , 1098, Jawahar Singh v Pardeman Singh
(1913) 14 Lah, 399

(/>) (1904) 27 Mad, 45 supra, (1936) 60 Bom, 455 supra
(r) The text is not found in Dr Buhler’s edition (S B E , Vol.
XXV) but IS cited m Mit. on Yajn , II, 175 (Setlur, 819). The last
clause IS only an arthavadn to show the importance of the duty Ghose
HL, I, 322, see Mann, VIII, 389 with Medhatithi’s comment on it,
Savitribai v Luxinubai (1878) 2 Bom., 573, Commr oj Income-tax v.
Lakshmipathi Saheba (1935) 14 Pal, 313, 316, Bhoopathi Nath v.
Basanta Kumari (1936) 63 Cal., 1098, 1110,

PARAS. 684-687.] wife’s right of maintenance.

825

Mitakshara lays down that “where there may be no property
but what has been self -acquired, the only persons whose main-
tenance out of such property is imperative are aged parents,
wife and minor children” (d).

§ 685. While the obligation to maintain a minor son is Son
personal and independent of the possession of any property,
the obligation to maintain a grown-up son rests upon the
latter being a co-sharer in the property of which his father
is the manager (e). A son who can sue for partition cannot
sue for maintenance but where he cannot sue for partition, he
is entitled to sue for maintenance (/).

§ 686. A sister is entitled to maintenance until her Daughter
marriage, and to have her marriage expenses defiaved (g).

After mariiage, her maintenance is a chaige upon hei husband
during his life, and after his death, upon her husband’s
family. If they are unable to support her and the widowed
daughter returns to live with her father or brother, there is
a moral and social, but not a legal obligation (/i).

§ 687. The maintenance of a wife by her husband is, of
couise, a matter of personal obligation, which attaches from
the moment of mariiage (ij. Where the wife is immature,
custom requires that she should reside with her parents, who

Wife to be
mamtamecl
by husband.

{(I) Mil. on Subiraction of Gift, cited Stra Man, 209, Rama Rao

V. Rajah of Pittapur (1918) 45 I.A., 148, 154, 41 Mad., 778, Amma
Kannii v. Appu (1880) 11 Mad, 91, Narinjan v. Gurmukh A.I.R. 1937
Lab., 76 (no obligation to maintain one’s step-brothers).

(e) Rama Rao v. Rajah of Putapur (1918) 45 I A., 148, 41 Mad., 778;
Maharajah of Jeypore v. Vikramadeo Garu (1919) 37 M.LJ., 188;
Kalu V. Kashibai (1883) 7 Bom., 127; Chanvirgauda v. District

Magistrate, Dharwar (1927) 51 Bom, 120, Hinimat v. Ganpat (1875)
12 Bom H (' , 94, Ramchandra v Sakharani (1878) 2 Bom., 346, 350-1;
Premchand v. Hulashchand (1869) 4 B L.R., App., 23, 12 W.R., 494,
See as to grandson, Mon Mohinee v. Baluck (1871) 8 B.L.R., 22, 15

W. R , 498; Ram Das v. Lachman Das A.I.R 1936 Lah., 853; Bhupati
Nath V. Basanta Kiiman (1936) 63 Cal, 1098.

(/) Bhiipal V. Tavanappa (1922) 46 Bom., 435; (1878) 2 Bom., 346
supra, (1875) 12 Bom. H.C., 94 supra.

ig) Bai Mangal v. Bat Rukhmini (1899) 23 Bom., 291; Tulsha
V. Gopal (1884) 6 All., 632, Ram Labhaya v. Nihal Devi A.I R. 1931
Ldh., 127, see aUo Narinjan v Gurmukh A I.R. 1937 Lah, 76

(h) (1899) 23 Bom., 291 supra, Mokhoda v. Nundo Lai (1900)
27 Cal., 555 affd. (1901) 28 Cal., 278 supra, but see Venkatarazu v.
Kotayya (1912) 23 M.L.J , 223, 233, pei Sadasiva Ayyai, J.

(t) Jayanti Subbiah v. Alamelu Mangamma (1904) 27 Mad., 45;
Narbadabai v. Mahadeo (1881) 5 Bom., 99; Appibai \. Khimji (1936)
60 Bom., 455; Venkatapathi v. Puttamma (1936) 71 M.L.J., 499;
Rattamma v. Seshachalam A.I.R. 1927 Mad., 502; Srinath Das v.
Booboot Chunder (1910) 11 C.L.J., 580; Indirabai v. Makarand A.I.R,
1931 Nag., 197; Lachhmi v. Mohan Lai A.I.R. 1934 Lah., 444.

826

MAINTENANCE.

[chap. XVIII,

Bound to
reside with
him.

maintain her as a matter of affection only; they can, at their
option, demand her maintenance from her husband, and
he IS bound to pay for it (/). And, conversely, her husband
IS alone liable No other member of the family, whether
joint or separate, can properly be made a party to the suit,
unless, pel haps, in cases where he has abandoned her, and his
property is in the possession of some other relation (A:).

68«> As soon as the wife is mature, her home is neces-
sarily in her husband’s house (/) He is bound to maintain
hei in it while she is willing to reside with him, and to
perform hei duties. If she quits him of hei own accord,
either without cause, or on account of such ordinal y quarrels
as are incidental to married life m general, she
can set up no claim to a separate maintenance (ni) .
Wheie the husband keeps a (onenbine in the house (n) or
tieats her with ciuelt\ s() as to cndangei hei peisonal safely,
she IS entitled to live apait and (laim sepaiale mainten-
ance (o). Cruelt) and abandonment aie not the only giounds
on which separate maintenance could be allowed to a wife
Sc'paiale maintenance can also bc' awaided when the husband
foi reasons ol Ins own chooses to put the wile away fiom
him or the wife lives away horn her husband for justifiabh*
reasons (/;). The grounds which will be available to a wife

(y) Ramien v ( oondummal Mad. Dec of 18SB, 154
(A) Hamabai v TnmboK <1872) 9 Bom II C . 283

(/) Dadaji \ Rukmabai (1886) 10 Bom, 301, Sitanath v Hamm-
batty 21 WR, 377, Anmiiiga \ V iraraghava (1901) 24 Mad, 255,
Tehait V Basanta (1901) 28 C.al , 751, hondal Ro\a v Ranganayahi
(1923) 46 Atjid , 791, 801, \ft Bairou Dci v Ram SciiaL Lai AIR.
1937 Oudh, 623 See ante ^ 133

(/7?) Rommadevara Naganna v Bommadevara Raja (1928) 55 M L I ,
242, A 1 R 1928 P(\ 187, kal/yaneesuree v Dwarkanath 6 ^ R., 116,
Sidlingappa v bidava (1878) 2 Bom, 634, Surampalli Bangaramma

V Surampalli (1908) 31 Mad, 338, 24 W R , 377 supra, §134

(n) Lalla Govind v Dowlat 14 W R , 451, 6 BLR, 85, Diilar Kuan

V Dwarka Nath (1905) 32 Cal, 234,239 In a case under §488 of

the Criminal Piorrdiire Code*, it was held tliat the wife could
not refuse to live with her husband and claim separate main-
tenance if lie kept a concubine as il was not adultery.
Queen Empress v Mannath Afhan (1894) 17 Mad, 260.

The view expre^'^ed in 32 Cal , 234, 239 m to be pieferred The deci-
sion m 17 ]\Iad , 260 turned on the special piovisions of §488, Cr P C.

(o) Matangini v Jogendra (1892) 19 Cal, 8A,BabuRam\ Kokla
(1924) 46 All, 210

ip) A//ve \ Soondaiee 9 WR, 475 (denial of maintenance);
Sidlingappa v. Sidava (1878) 2 Bom., 634, Sitabai v. Rarnachandra
(1910) 12 Bom. L R., 373 (abandonment), Shinnajipayya v Rajamma
(1922) 45 Mad, 812 (leprosy), Sitanath v Haimabatty 24 W R , 377
(unkindness — not good reason) ; Viraswami v Appaswami (1863) 1
M.H C., 375 (second wife — not good cause), Rajlucky v. Bhootnath
(1900) 4 C.W.N., 488 (quarrels—not good reason) , Venkatapathi v.

PARA. 688.] WIPERS RIGHT TO SEPARATE MAINTENANCE.

827

to defeat a suit for restitution of conjugal rights would also
entitle her to live apart from her husband and claim separate
maintenance (p^).

The circumstance of a man taking another wife, even
without any justifying cause (p“) does not by itself entitle her
to leave his home, so long as her husband is willing to keep her
there (^). A wife who leaves her home for purposes of
adultery, and persists in following a vicious course of life,
cannot claim to be maintained, oi to be taken back (r).

A wife living apart from her husband for no improper
purpose may, at any time, return and claim to be main-
tained. Her right is not forfeited but only suspended
during the time she commits a breach of duty by
living apart and is revived when at his death such duty
ceases to exist (.s). When a wife leaves her husband’s
home by his consent, he is, of course, bound to receive
her again when she is desirous to leluin, and if he refuses For a lawful
to do so, she will be entitled to niaintenance just as if he purpose,
had turned her out (t). A wife, who is unlawfully excluded
from hei own home, or lefused pioper maintenance in it,
has the same right to pledge her husband’s credit, as a wife
in England. But the onus lies heavily on those who deal
with her to establish that she is in such a position (a). A
husband who has abandoned Hinduism is still bound to
maintain his Hindu wife (u).

Puttamma (1936) 71 M.L J., 499; Duiar Koer v. Divarka Nath Missir
(1907) 34 Cal., 971; Mt. Lajwanti v. Bakbhi Ram A.l.R. 1934 Lah.,
110; IJde Singh v. Mst. Daiilat Kuer (1935) 16 Lah., 892.

(pi) Venkatapathi v. Puttamma (1936) 71 M.LJ., 499; Ude Singh
V. Daulat Kuer (1935) 16 Lah., 892 (abandonment) ; Appibai v. Khimji
Cooverji (1936) 60 Bom., 455 (desertion) ; Bommadevara Naganna v.
Bommadevara Rajya (1928) 55 M.L.J., 242 P.C., A.l.R. 1928 P.C. 187
(if wife lives apart without justifying reason, she cannot get mainten-
ance) ; Bahuria Sarasivati Kuer v. Bahuria Sheoratan (1933) 12 Pat.,
869.

(p2) See as to these, Manu, IX, 77-82.

(^) Manu, IX, 83, Viraswami v. Appaswami (1863) 1 Mad. H.C.,
375; Rajah Row Bochee v. Vencata Neeladry 1 Mad. Dec., 366; see
Duiar Kuan v. Dwarka Nath Missir (1907) 34 Cal., 971; Af^. Lajwanti
V. Bakshi Ram A.l.R. 1935 Lah., 110; Ude Singh v. Daulat Kuer (1935)
16 Lah., 892. See ante § 134

(r) 2 W. MacN., 109; llata v. Narayana (1863) 1 Mad. H.C.,
372; Debi Saran Shukul v. Daulata Shuklain (1917) 39 All., 234;
Subbayya v. Bhavane (1914) 24 I.C., 390; Kandasami v. Murugammal
(1896) 19 Mad., 6.

( 5 ) Surampalh Bangaramma v. Surampalh Brambaze (1908) 31
Mad., 338.

(^) Nitye V. Soondaree 9 W.R., 475.

(u) Viraswami v. Appaswami (1863) 1 375.

(v) Mansha v. Jiwan (1884) 6 AIL, 617.

828

MAINTENANCE.

[chap. XVIII,

Widow.

Act XVIII
of 1937.

§ 689. The widows of the members of the family are
entilled to maintenance ( /i;) . Now, under the Hindu
Women’s Rights to Property Act ( XVIII of 1937) , the widows
of deceased roparceneis in a Mitakshara family are entitled
to their husbands’ interests. Then rights to maintenance
under the Hindu law aie not in terms taken away by the
new Act, liut that must be the necessary consequence, foi
they weie allowed maintenance only because they were ex-
cluded fiom inheritance and a share on paitition. So also,
the w idow of a pci son governed by the Dayabhaga law
becomes entitled to succeed to his property even in
the piesence of male i«sue for the share of a son So too. in a
IMitak^^haia familv. wheie a man dies inte^^tate leaving
sepal ale piopcitv. his widow is snnilaily entitled to the sliaie
of a son along with the male issue. The widowed
daughtei-in-law and the widowed gianddaughtei-in-law are
also entitled to inheiit in ceitain shaies even though theie be
male issue FIk' leMilt ol the' new Ad will theiefore
be that the law as to maintimand' of the w^idows
of (opaiceneis oi of divided membeis, whethei undei the
Mitakshaia oi undei the Dayaldiaga, will m couise of time
become obsolete As the Hindu Women’s Rights to Property
Act IS not leti ospective, this Inanch of the law will continue
to gov^ein the Tights to maintenance of widow^s of coparceners
and ol divided membeis which were vested in them befoie the
Act came inlo loice The law as it stood befoie the Act ha^^
theicfoic to be stated

§ 690 While a widow is entitled to maintenance from
her son evert if he is not in possession of ancestral property
in her character as mothei ( n ) . a similai right against her

(?c) Provided llie> aie chaste an<l so lonjj; as tliey lead a viiluoiis
life Lahshmi Chand \ Anandi (1935 ) 62 I A, 250, 57 All, 672,
Ramannth v Rajoniniom (1890) 17 Cal, 674, “Let them allow
a maintenance to liis women for life, piovided thebc pre-
serve iin&iilhed tlu hed of tlieii loids But if tliey behave
othciwisc, the hrcihnn mav n'sume tliat allowance'’ (Narada, XIII,
§26) This text is said 1)> limulavahdna to apply to women dctually
espoused and who have not the rank of wives, hut another passajie of
Narada (cited Smi ituhandiika, XI, 1, §34) is open to no such
objection “Whichever wife (palm) becomes a widow and continues
virtuous, sju* IS intithHl to be piovided with food and raiment” See,
too, Smiitiehandiika, XI, I, §47, Sinthayce v Thanakapudayeii
(1868) 4 Mad. H.( , 185, ken kolitan\ v Monceram 13 BLR.. 1, 72.
88 F.B , on appeal, (1880) 7 t A , 115, 5 Cal . 776.

(v) Subharayana v. Subbakka (1885) 8 Mad., 236,

PARA. 690.]

widow's right of maintenance.

829

father-in-law is not admitted (y). The Smritichandrika ex-
pressly states that the obligation to maintain the widow is
dependent on taking the property of the deceased {z) ,

She is entitled to be maintained wheie her husband’s
separate property is taken by his male issue (a).
Where, at the time of his death, he was a coparcener she is
entitled to maintenance as against those who take her hus-
band’s share by survivorship (6). Where there is no such
property she has no claim to maintenance against her father-
in-law oi brother-in-law out of their separate propeity; but
the father-in-law is under a moral liability to maintain his
son’s widow out of his own separate property.
When his sons or in their default, his widow, daughter or
daughter’s son, succeed to his estate, his moral liability as
transmitted to them on his death becomes in their persons a
legal liability. The measure of that liability is restricted to
the amount of the estate to which they have succeeded. This
rule obtains both under the Mitakshaia and the Dayabhaga
law (c).

(y) Ammakannu v. Appu (1888) 11 Mad., 91, Meenakshi v. Rama
Aiyar (1914) 37 Mad., 396, Ramabhai v. Tnmbak (1872) 9 Bom. H.C.,
283, Suhbarayalu v. Kamnlavalli Thayatammal (1912) 35 Mad, 147,
Gangabai v. Sitaram (1876) 1 All, 170, Janki v. Nand Ram
(1889) 11 AIL, 194 F.B , Kamini Dassee v Chandra Pode (1890)
17 Cal., 373, Devi Prasad v Gunwanti Koer (1895) 22 Cal., 410;
Khetramani v. Kashinath (1869) 2 B.L.R. (AC.J.), 15, 10 W.R., 89
(F.B.), Savitribai v Luxnmbai (1878) 2 Bom., 573 (husband’s
pdterjidl uncle) , Apaji v Gangabai, ib., 632 (husband’s brother) ;
Kaln V Kashibai (1883) 7 Bom, 127; Adhibai v. Cursondas (1887)
11 Bom., 199; Yamunabai v. Manubai (1889) 23 Bom, 608; Siddesury
V Janaidan (1907) 29 Cal, 557, 570, Bat Daya v Naiha (1885) 9
Bom., 279 (step-son)

(z) Smrili Chandrika, XI, 1, 34 “In order to maintain the widow,
the elder brother or of any of the other abovementioned must have
taken the properly of the deceased, the duty of maintaining the widow
being dependent on taking the properly.” It is immaterial whether
the property is movable or real. Kamini Dassee v. Chandra Pode
(1890) 17 Cal. 373.

(а) Narbadabai v. Mahadeo (1881) 5 Bom., 99, Bhagabati v.
Kanailal (1871) 8 B.L.R., 225; Brinda v. Radhica (1885) 11 Cal., 492.

(б) Adhibai v. Curmndas (1887) 11 Bom., 199; Devi Prasad v.
Gunwanti (1895) 22 Cal., 410; Becha v. Mothina (1901) 23 All., 86;
Jayanti Subbiah v. Alamelii (1904) 27 Mad., 45.

(f) Rajani Kanta Pal v Sajani Siindar Dassya (1934) 61 I.A., 29,
61 Cal., 221, Janhi v. Nandram (1889) 11 All, 194 F.B., (1887) 11
Bom , 199 supia, (1888) 11 Mad , 91 supra; (1890) 17 Cal., 373 supra;
(1899) 23 Bom., 608 supra, Siddesury v. Janardun (1902) 29 Cal.,
557; (1899) 22 Mad., 305 supra; (1914) 37 Mad., 396 supra; Jai
Nand v. Paran Dei A.I.R. 1929 Oudh, 251, 4 Luck., 491 F.B.; Gopal
Chandra v. Kadamhini Dasi A.I.R. 1924 Cal., 364; Laxmibai v. Sambha
A.I.R. 1932 Nag., 11.

830

MAINTENANCE.

[chap. XVIII,

Where the father-in-law disposes of his property by will, the
Madias High Court has held that she is entitled to the same
right (d) , But in Bombay it is held that the daughter-in-law
has no right to maintenance from a person to whom her
father-in-law has bequeathed the whole of his self-acquired
property (e).

Widow not
bound to
reside with
husband's
family.

Widow

residing apait.

§ 69 J. The same leasons which require a wife to remain
under her husband’s roof do not apply where she has become
a widow. No doubt the family house of her husband’s
relations is a proper, but not necessarily the most propei,
place foi her continued lesidence {/) . At all events it is settled
by decisions of the highest tiibunal that “all that is required of
her is, that she is not to leave hei husband’s house foi impioper
oi unchaste purposes, and she is entitled to retain her mainten-
ance, unless she is guilty of unchastity, or other disreputable
practices aftei she leaves that residence” (g). The Judicial
Committee laid down in Ekradeshwari Bahuasin v. Homesh-
war that a Hindu widow who has left the lesidence of her
deceased husband, not for unchaste pui poses, and resides with
her fathei is entitled to maintenance as well as to an ears of
maintenance from the date of her leaving her husband’s resid-
ence although she does not prove that she has incurred debts m
maintaining herself and gives no reasons for the change of
lesidence (li), A widow cannot claim a separate mainten-
ance wheie the family property is so small as not to admit
leasonably of the allotment to her of such a maintenance (i).
But this is not a rule of Hindu law, but merely a

id) Rangammal v Echammal (1899) 22 Mad., 305, Jeot Ram
Chaudhuri v. Mt.Lanj A.I.R. 1929 All, 751, bee also Indubala Dasi v.
Penchumani D!ts (1914) 19 C.W.N , 1169

(e) Bai Parvati v. Tarivadi (1901) 25 Bom, 263, Bhagirathibai
V. Divarkabai A I.R 1933 Bom , 135 (gift) ; in the former case, the
devisee got all the property and was therefore the legal representative
and would be legally bound to maintain the widow. Compare section
128 of the Transfer of Properly Act.

(/) Dig., II. 123.

ig) Pirthee bingh v. Ram Raj Kooer (1873) 12 B.L.R., 238 P.C.,
I A Supp., 202, 20 W.R., 21, where most of the previous cases are
cited; Vibalatchi v. Annasami (1870) 5 Mad. H.C., 150; Kasturbai
V. bhivajiram (1879) 3 Bom., 372 dissenting from Rango Vinayak v.
Yamunabai (1879) 3 Bom., 44, Narayan Rao v. Rakhmabai (1879)
6 LA, 114, 3 Bom, 415; Gokibai v Lakhmidas (1890) 14 Bom., 490;
Siddesiiiry v. Janardan (1902) 29 Cal., 557; Ginanna v. Honamma
(1891) 15 Bom., 236, Parwatibai v. Chatru Limbaji (1912) 36 Bom.,
131.

ih) (1929) 56 I.A., 182,8 Pat., 840; /far Partah Singh v. Thakurain
Raghuraj A.I.R. 1933 Oudh, 550, Pachayammal v. Paramasiva 1937
M.W.N., 785.

(i) Godavaribai v. Sagunabai (1898) 22 Bom., 52, Ramchandra
V. Sagunabai (1880) 4 Bom., 261; (1878) 2 Bom., 573 supra; (1879)
3 Bom., 372 supra.

PARAS. 691-692.] widow’s right of maintenance.

m

rule of equity and discretion depending upon each case (/).

If the husband by his will made ic a condition that his
widow should reside in his family house, the direction would
be binding (k). Where a widow elects to live with her
husband’s family, she must accept such anangements for her
residence as they make for her (/). But where she insists
on a separate maintenance she cannot also claim a right to
live in the family house.

S 692. Unchastity on the pait of a Hindu widow dis- Unchastity,
entitles her to maintenance and as maintenance is a recurring
right, a right to it is conditional upon her leading a life of
chastity (//i). She foifeits her right by hei unchaste conduct
even though it is secuied by a decree oi agreement (n), but
not where it rests upon an independent consideration, as for
instance, a compromise of her claim to propeity (o). In
Lakshmi Chand v. Auandi, the Judicial Committee observed
that “the light of a Hindu widow to maintenance is condi-
tional upon her leading a life of chastity and she loses that
light if she becomes unchaste” (p). The view taken by
Chanda varkai , J., in Parami v Mahadevi that a wife living
an unchaste life is entitled to some maintenance (^), cannot
be regarded as coirect. But theie can be no doubt that if
she repents, returns to purity and performs expiatory rights,
she will be entitled to maintenance (ry). Accordingly the

(y) Veggamnui v Kahanamtna 41 Mys. ll.(", 90
(A) Pirthee Suigh v Rani Raj Kooer (1874) 12 B L R., 247, 20 W.R,.
21, Miilji Ranhanfiai v. Bai U jam (1889) 13 Bom., 218; Girianna v.
Honamma (1891) 15 Bom., 236, Tm Coivn v. Krishna Bhabirn (1893)
20 Cal.. 15.

(/) Mohun Geer ^ Mt Totoa 4 N.-W.P, 153.
im) Lakbhnn Chand v Anandi (1935) 62 T A., 250, 255, 57 All.,
672, Muttammal v. Kamakshy Animal (1865) 2 M.H.C., 337;

Kandasami v. Murugammal (1896) 19 Mad, 6, Debi Saran Shiikid v.
Daulata Shuklain (1917) 39 All., 234 following 5M66«yya v. Bhavani
(1914) 24 I.C., 390; Honama v. Timmanna Bhat (1877) 1
Bom., 559, 560, Nagalakshmaniina v. Visvanatha Sastn (1912) 23
M.L.J., 289, Nar., Xlf, 91, Yajn., I, 70, Viramit., Sctliir, ll, 405,
Pirthee Singh v. Raj Koei (1873) I.A. Supp. Vol., 203, 12 B.L.R , 278,
Monirani Koliia v Kerry Kolitani (1880) 7 1 A., 115, 5 Cal, 776,
Vain V. Ganga (1883) 7 Bom, 84; Vishnu v. Manjamma (1885) 9
Bom., 108, Ramanath v. Rajammom (1890) 17 Cal., 674, 679. See
note iw) to §689.

{n) Naganima v. Virabadia (1894) 17 Mad., 392, Duulta Kuan
V. Meghu (1893) 15 All., 382; Maharana Ranmal Sangji v. Kundan
(1902) 26 Bom., 707, Kisanji v. Lukshmi A.I.R. 1931 Bom., 286.

(o) Bhiip Singh V. Lachnian (1904) 26 All., 321; Shiv Lai v. Bai
SankU A.I.R. 1931 Bom., 297.

(p) (1935) 62 I.A., 250, 255, 57 All., 672.

iq) (1910) 34 Bom., 278; Bommayya Hegade v. Jalayakshi (1914)
27 M.L.J., 305; Ram Kumar Dube s Bhagwanta (1934) 56 All., 392;
Mt. Shibbi V. Jodh Singh (1933) 14 Lah., 759; Haji Saboo Siddick v.
Ayeshabai (1^3) 30 I.A., 127; 27 Bom., 485 Bhikubai v. Hariba
(1925) 49 Bom., 459. Where an unehasle woman conccivcb as a result
of adulteiy, no maintenance is allowed, Yajn., 1, 72; Vas., XXI, 10.

832

MAINTENANCE.

[chap. XVIlI,

Madras, Bombay and Allahabad High Couits have held that
d Hindu widow who after living an immoral life leforms her
Wdyss IS entitled to staiving mdintenance (r)

§ 693. A female heir is under exactly the same obliga-
tion to maintain dependent members of the family as a male
heir. The obligation extends even to the King when he
takes the estate by escheat or by forfeiture ( 5 ).

Remarriage. § 694*. A widow who lemarries has no right to main-

tenance out of hei fiist husband’s estate. All the Courts are
agreed that this is the lule where she cannot remarry except
under the provisions of the Hindu Widows’ Remarriage Act
(XV of 1856). But where independently of the Act, she can re-
man y 111 accoidaiuc with the custom of the taste, there is a
diffeience of opinion as to whethei or not she loses her right of
maintenance Most of the High Couits have held that her
remarriage disentitles hei to maintenance from the
estate oi family of her first husband (^). The Allahabad
High Court and the Chief Couit of Oudh take a contrary
view (u) , The true view would appear to be that it is not a
question of foifeituie at all, but that undei Hindu law a
woman is entitled to maintenance only so long as she is a widow.
On her leinarriage, she becomes entitled to maintenance as
against hei new husband and when she becomes a widow
she will lie entitled to mainlenam e in the new family. In
Hindu law a woman cannot at the same time be the widow of
one and the wife of anolhei Her foimer status as widow is
merged in 01 destroyed by her new status as wife.

Quantum of quantum of maintenance, the fiist

maintenance. question w^juld be. What would be the fan wants of a person
in the position and lank of life of the claimant? The wealth
of the family would be a pioper element in determining this
question A membei of a family who had been brought
up in affluence would naturally have more numerous and
more expensive wants than one who had been brought up

(r) SatYabhania V Kcbavacharya (1916)39 Mad., 658, (1925) 49
Bom., 459 supra; (1934) 56 All, 392 supra

(6) Nar., XIII, 52, Golab Koonwur v. Collector oj Benares (1847)

4 M.I A . 246

(0 Murugayee v Viramakah (1877) 1 Mad., 226, Rasul v. Ram
Suruii (1895) 22 Cal, 589, Vithu v Govinda U898) 22 Bom., 321
FB , Suraj v. Attar (1922) 1 Pat, 706, Santala v. Badaswari (1923)
50 Cal.. 727. Sec ante § 533.

(u) Gajadhar v. Kausilla (1909) 31 All., 161, Mula v. Partab
(1910) 32 All., 489, Mangat v Bhairo (1927) 49 All., 203; Bhola
Umar v Kaunsilla (1933) 55 All., 24 Y Ram tall \ Mt Jawala I R.
1928 Oudh, 338, 3 Luck., 610, Gajadhar v. Mt. Sukdci A.I.R. 1931
Oudh, 107, 5 Luck., 689.

All heirs
bound.

t>AkA. 695.J quantum op maintenance.

in poverty. The extent of the property would be material
in deciding whether these wants could be provided for,
consistently with justice to the other members (v) . The
extent of the property is not, however, a criterion of the
sufficiency of the maintenance, in the sense that any ratio
exists between one and tjie other. Otherwise, as the
Judicial Committee remarked (t^;) , “a son not provided for
might compel a frugal father, who had acquired large means
by his own exertions, to allow a larger maintenance than he
himself was satisfied to live upon, and than children living
as pait of his family must be content with.” Each case
must be determined upon its own facts. As regards
widows, since they are only entitled to be maintained by
pel sons who hold assets over which their deceased husbands
had a claim, the High Court of Bombay has luled that it
follows as a corollary, “that the widow is not, at the utmost,
entitled to a larger portion of the annual produce of the
family property than the annual proceeds of the share to
which her husband would have been entitled on partition
were he now living” (it) . In a recent ease, the Privy Council
pointed out: “Maintenance depends upon a gathering together
of all the facts of the situation, the amount of free estate, the
past life of the married paities and the families, a survey
of the conditions and necessities and lights of the members,
on d reasonable view of change of circumstances possibly
lequired in the future, regard being, of course, had to the
scale and the mode of living, and to the age, habits, wants and
class of life of the paities. In short, it is out of a great category
of circumstances, small in themselves, that a safe and
reasonable induction is to be made by a Court of law in ai-
living at a fixed sum” ( 7 ).

The rate of maintenance should be such as will enable
the widow to live consistently with her position as a widow
in something like the same degree of comfort and with the

( 1 ;) Baisni v. Rup Singh (1890) 12 AIL, 558; Devi Pershad v.
Gunwanti (1895) 22 Cal., 410; Mahesh Partab v. Dirgpal (1899) 21
AIL, 232.

(w) Tagore v. Tagore (1871) 9 B.L.R., 413, LA. Supp. VoL, 47, 82;
Nittokissoree v. Jogendro (1878) 5 I.A., 55; Mahesh v. Dirgpal (1899)
21 AIL, 232, 234.

{x) Madhavrav v. Gangabai (1878) 2 Bom., 639; Adibai v.

Cursandas (1887) 11 Bom., 199; Jayanti Subbiah v. Alamelu (1904)
27 Mad., 45; where the* wife is forsaken, she is entitled to one-third of
her husband’s property; Ramabhai v. Trimbak (1872) 9 Bom. H.C).,
283. As to when the estate is heavily indebted, see Savitri Thakurain
V. Mrs. F, A. Savi (1933) 12 Pat., 359.

(y) Ekradheshwari v. Homeshwar (1929) 56 I. A., 182, 8 Pat., 840;
Sobhanadramma v. Narasimhaswami (1934) 57 Mad,, 1003, 1007.

55

834

MAINTENANCE.

[chap. XVHt,

Where widow
has property

same reasonable luxury as she had in her husband’s life.
Allowance however must be made for the circumstance that the
past mode of life of the widow was either on a penurious
scale or an extravagant scale, having regard to the husband’s
total income ( 2 ) .

The observations which were made in cases relating to
widows generally apply with necessary modifications also to
a wife and to other claimants to maintenance such as dis-
qualified heirs (a) .

§ 696. In calculating the amount of maintenance to be
awarded to a female, her own stridhana is not to be taken
into account, if it is of an unproductive character, such as
clothes and jewels. For she has a right to retain these, and
also to be supported, if necessary, by her husband’s family.
But if her property produces an income, this is to be taken
into consideration (6). This principle applies as well to any
one entitled to maintenance. It has been held that the fact
that a Hindu widow is able to maintain herself out of other
property is no ground for not giving her some maintenance
out of her husband’s property (c), and that the right to
maintenance is an absolute one (d). In another case, it was
held that where a widow is, or ought to have
been, in possession of her husband’s separate property

(c) Rajanikanta Pal v. Sajani Sundari Dassee (1934) 61 I.A., 29,
61 Cal., 221, follg. (1929) 56 LA, 182, 8 Pat., 840 supra, Dalai Kunwar
V Ambika (1903) 25 AIL, 266; Sundarji v. Dahibai (1905) 29 Bom.,
316, Appibai V. Khimji (1936) 60 Bom., 455. Where the
amount of maintenance has been settled by the Indian Courts, it is
not the pr&ctice of the Judicial Committee to interfere with that
amount on appeal Kachi Kalyani v. Kachi Yuva (1905) 32 LA, 265,
28 Mad, 508, 512 (the U dayarpalayam case); (1929) 56 I A., 182,
8 Pat.. 840 supra,

(а) Sobhanadramma v. Narasimhaswami (1934) 57 Mad., 1003;
Appibai V. Khimji Cooverji (1936) 60 Bom, 455.

(б) Shib Dayec v. Doorga Pershad (1872) 4 N -W.P , 63, Chandro-

bhagabai v. Kashinath (1866) 2 Bom HC, 323; Savitribai v. Laximibai
(1878) 2 Bom., 573, 584. A mere right of action to recover

property under a will is not a legitimate ground for re-
ducing maintenance, Gokibai v. Lakniidas (1890) 14 Bom.,

490; Shyama Bhai v. Purushottamdoss A.I.R. 1925 Mad., 645, Guru-
shiddappa v. Parwateivwa 11937] Bom, 113 (where it was suggested
that if the ornaments were of great value, it should be taken into
account) , Han Partab Singh v. Raghuraj Kuar A.I R. 1933 Oudh, 550.

(c) Lingayya v. Kanakamma (1915) 38 Mad., 153.

(d) Lingayya v. Kanakamma (1915) 38 Mad, 153; dissenting

from Ramawati Koer v Man]hari Koer (1906) 4 C.L.J , 74; Kodanda
Rama Reddi v Chenchamma 59 MLJ., 531, a precarious

payment by a brother cannot be considered Saraswati v. Sheorafan
Kiier (1933) 12 Pat, 869, 875, Gokibai v. Lakmidas (1890) 14
Bom., 490.

PARAS. 696-697.] ARREARS OP MAINTENANCE.

835

or the joint family property sufficient for her main-
tenance, she has no cause of action, while she is in

possession thereof or till she exhausts those resources, to
sue for maintenance (e). A member of the family, who has
once received a sufficient allotment for maintenance, and who
has dissipated it, cannot bring ^ suit either for a money allow-
ance, or for subsistence out of the family propeity (/). On
the other hand, an allowance fixed in reference to a parti-
cular state of the family pioperty may be diminished by
order of the Court if the assets are' afterwards reduced (g),
provided the reduction has not arisen from the act of the

person liable for maintenance (h). And, on the same piin-

ciple, the allowance might be raised, if the pioperty increased,
or a change of circumstances justified the demand (i).

A contract by a person entitled to maintenance to receive
a fixed maintenance per annum and not to claim any increase
in future, even though circumstances change, is valid (/).

§ 697. Arrears of maintenance used to be refused and
were held to be within the discretion of the Court. It is
now settled that in order to recover arrears of maintenance,
it is not necessary to prove a demand and refusal (k). The
light to maintenance is a recurring right and non-payment
of maintenance prima facie constitutes pi oof of wrongful
withholding. Unless adequate grounds are shown for infer-
ing that the person entitled has waived or abandoned the

(e) Dattaraya Waman v. Rukhmabai (1909) 33 Bom., 50; Srini-
vasa Aiyar v. Amniam (1931) 61 M.L.J., 381.

(/) Savitribai v. Luximibai (1878) 2 Bom., 578.

(g) Rukabai v. Gandabai (1878) 1 All., 594.

(A) Vijaya v. Sripathi (1885) 8 Mad., 94; Gopikabai v. Datta^
ray a ^900) 24 Bom., 386; Sheo Mangal v. Bodhi Kuar A.I.R. 1936
Oudh, 60; Sundari v. Venkatarama (1934) 66 M.L.J., 680, A.l.R. 1934
Mad , 384 (improvement of widow’s financial position, no ground for
reducing rate hxed).

(0 Sreeram Bhuttacharjee v. Puddomodkee 9 W.R., 152; Sidling-
appa V. Sidava (1878) 2 Bom., 624, 630 F.B.; Bangarammal v.
Vijayauiachi (1899) 22 Mad., 175. The right of a widow to mainten-
ance IS one accruing from time to time according to her wants and
exigencies; Rangubai v. Subaji Ramachandra (1912) 36 Bom., 383;
Mt, Bhagwanti v. Mam Ram Shah A.I.R. 1935 Lah., 543.

(/) Mohieswara v. Durgamba (1924) 47 Mad., 308; Purshottam
Das V. Rukmini A.l.R. 1937 Bom., 358; Nanjamma v. Visvanathiah 42
Mys.H.C.R., 699.

(A) Yeralagadde v. Yeralagadde (1901) 27 I.A., 151, 24 Mad., 147;
Ekhradheswari v. Homeshivar (1929) 56 I.A., 182, 8 Pat., 840;

Subramania v. Muthammal (1911) 21 M.L.J., 482.

Arrears.

MAINTENANCE. [cHAP. XVIII,

claim to maintenance, the person bound to pay maintenance
cannot escape liability (/).

While the right to arrears of maintenance is a legal right
the Court has a discretion to award them at a lower rate than
future maintenance (m). Maintenance has been held to
accrue from day to day and to be apportionablc (/i).

It is open to the Court to insert a provision in the decree
giving liberty to either party to apply m execution proceed-
ings for increase or reduction of the rate of maintenance on
account of a change of circumstances (a).

§ 698. There are 'several texts which piohibit the gift
of properly to such an extent as to deprive a man’s family
of the means of subsistence (p).

(/) Yeralagadda v Yeralagadda (1901) 27 I A., 151, 24 Mad,
147 (the younger brothers of the holdei of an impartible estate wrongly
claimed it to be partible in their suit for partition in which they
succeeded only as to the partible properties. Notwithstanding the
fact that they instituted and persisted in their wrong suit and did not
claim their maintenance as it fell due, they were held entitled to
arrears of maintenance for twelve years) ; Rungathayee v. Munu-
swamichetty (1911) 21 M.L.J., 706, Pushpavalli Thayarammal

V. Haghvaiahchetty (1914) 15 ML.T, 95, Panchaksharachetty v.

Pattammal A.LR. 1927 Mad., 865, Srinivasa Ayyar v. Lakshmiammal
A.I.R. 1928 Mad., 216, 54 M.LJ., 530, Sobhanadramma v Narasimha-
swami (1934) 57 Mad., 1003, Ramarayudu v. Sitalakshmamma A.LR.
1937 Mad., 915, Mt, Sham Devi v. Mohanlal (1934) 15 Lah., 591;
Sarasvati v. Sheo Rat an (1934) 12 Fat., 869 (no interest allowed on
arrears) ; Rani Labhaya v. Nihat Devi A l.R. 1931 Lah., 127
(daughter-in-law) .

(m) (1929) 56 I.A., 182, 8 Pat., 840; Raghubans Kunwar

V. Bhagwant (1899) 21 All., 183, Sidlingappa v. Sidava (1878)

2 Bom, 624 F.B., Panchakshara v. Pattammal A.I.R 1927 Mad.,
865; V enkafhratnamma v. Seetaratnam A.I.R. 1932 Mad., 408;
Gurushidappa v. Parwatewa [1937] Bom., 113, Ramarayudu v.
Sitalakshmamma A.I R. 1937 Mad , 915. The dicta in Karbasappa v.
KalLava (1919) 43 Bom., 66, Lakshmamma v. V enkatasubbiah (1924)
48 M.L.J., 266 and in Mt, Jamwati v. Maharam A.I.R. 1931 All., 227
that there is a discretion to award or not arrears of maintenance
are no longer correct. The Privy Council has said “In the Board’s
opinion, such arrears, if they truly exist, fall within the range of the
widow's right to maintenance” 56 I.A., 182, 188, 8 Pat , 840. See also
Sobhanadramma v. N arasimhaswami (1934) 57 Mad, 1003, 1009-12;
Venkatapathi v. Puttamma (1936) 71 M.L.J., 499; [1937] Bom., 113,
127 supra.

in) Rangappayya v. Shiva (1934) 57 Mad, 250.

(o) Ranmal Sangji v. Bai Shri Kundan Kunvar (1902) 26 Bom.,
707; Gurushidappa v. Parwatewwa [1937] Bom., 113, 127; Sivanand-
ammal v. Narasinga (1937) M.W.N., 1228.

ip) Brihaspati says. “A man may give what remains after the food
and clothing of his family; the giver of more (who leaves his family
naked and unfed) may taste honey at first, but shall afterwards find
It poison. If what is acquired by marriage, what has descended from
an ancestor, or what has been gained by valour, be given With the
gbsent of the wife, or the coheirs, or of the king, the gift is valid.”

PARA. 699.] WHEN ENFORCEABLE AGAINST ALIENEE.

837

§ 699. It was settled that the claim even of a widow for
maintenance is not a charge upon the estate as bound it in How far a
the hands of a bona fide purchaser for value without notice charge,
of the claim. Before the amendment in 1929 of sec-
tion 39 of the Transfer of Property Act (IV of 1882), as
the decisions stood, the purch^iser must have had notice, not
merely of the existence of a right to maintenance — ^that is, of
the existence of persons who did or might require to be
maintained — ^but of the existence of a charge actually created
and binding the estate or of the transferor’s intention to defeat
the right to maintenance {q). Of course if the transfer was
gratuitous, the transferee took the property subject to the
right to maintenance.

A decree actually settling the amount of maintenance, and
making it a charge upon the property, was held to be
valid even after the death of the person against whom the
decree was obtained (r) ; but not, apparently, a merely per-
sonal decree against the holder of the property (s ) . So,
if the property was bequeathed by will, and the widow’s
maintenance was fixed and charged by it upon the estate (0 ;
or, if by an agreement between the widow and the
holder of the estate, her maintenance was settled and

(Bnh., XV, 3). Katyayana declares what may and may not be given.
“Except his whole estate and his dwelling-house, what remains after
the food and clothing of his family, a man may give away, whatever
it be (whether fixed or movable) ; otherwise it may not be given”.
Vyasa says: (D. Bh., I, 45) “They who are born and they who are
yet unbegotlen, and they who are actually in the womb, all require
the means of support, and the dissipation of their hereditary mainten-
ance is censured”. So a passage ascribed to Mann, (D. Bh., II,
23-24) declares: “Tlie support of persons who should be maintained
is the approved means of attaining heaven. But hell is the man’s
portion if they suffer Therefore let a master of a family carefully
maintain them”. This Jimutavahana explains by saying: “The problem
is not against a donation or other transfer of a small part not incom-
patible with the support of the family”.

(q) Lakshman v. Satyahhamabai (1878) 2 Bom., 424 ; Soor/a

V. Natha Baksh (1885) 11 Cal., 102; Jayanti v. Alamelu (1904) 27
Mad., 45; Behari Lalji v. Bai Rajbai (1899) 23 Bom., 342; Ram
Kunwar v. Ram Dei (1900) 22 All., 326; Bharatpur State v. Gopal
(1902) 24 AIL, 160; Mohini Debt v. Piirna Sashi (1931) 36 C.W.N.,
153; Somasundaram v. Unnamalai (1920) 43 Mad., 800

(r) Subbanna Bhatta v. Subbanna (1907) 30 Mad., 324.

( 5 ) Per West, J, Lakshman v. Satyabhamabai (1878) 2 Bom., 494,
524, Adhiranee v. Shona Malee (1876) 1 Cal., 365, Saminatha v.
Rangathammal (1889) 12 Mad., 285; Kuloda v. Jageshar (1900) 27
Cal., 194; Bhagirathi v. Anantha Charm (1894) 17 Mad., 268; Muttia
v. Virammal (1887) 10 Mad., 283; Minakshi v. Chinnappa (1901) 24
Mad , 689.

(f) Prosonno v. Barbosa 6 W.R., 253.

838

MAINTENANCE.

[chap. XVIII,

Lis Pendens*

made payable out of it (u), or if she was in posses-
sion of specific property for the purpose of her mainte-
nance (v), a purchaser taking with notice of the charge would
be bound to satisfy it. And the charge, where it exists, is
a charge upon every part of the property, and may be made
the ground of a suit against anyone who holds any part of
it (w). Even express notice at an execution sale under the
decree that a widow had a claim for maintenance upon the
estate, was held not to affect the rights of the purchaser (.t) .

Where a widow had sued for maintenance and had named
specific items of property in order to enable the court to deter-
mine the amount she was entitled to, but had made no claim for
a charge on the propertv, though such a charge was in fact
created by the decree, the charge was held not to attract the
doctrine of Its pendens as against a mortgage made pending
suit (>). But where the suit is to get the maintenance made a
charge upon immovable propeity. any transfer made during the
pendency of the suit, not effected for the puipose of paying
off any debt entitled to priority over the claim for mainten-
ance will be affected by the lis pendens created by the suit (::) ,
So too, a transfer during the pendency of a partition suit by
one of the parties to it, when a claim to have the maintenance
of a person charged upon the property is made in that suit,
will be subject to the doctrine of Iis pendens (a).

(«) Lahshmnn v Sarawatibai (1875) 12 Bom HC, 69, 75;

Abadi V Asam (1880) 2 All, 162

(f;) Rachava v Shivayogapa (1894) 18 Bom, 679, Imam v

Balamma (1889) 12 Mad, 334, Rani Kumar v. Amarnath (1932)
54 All., 472.

(w) Ramcmhandra v Savilnbai (1867) 4 Bom HC (ACT), 73,
Nistarint v Mnkhanlal 9 B.I. R , 27, (1875) 12 Bom HC, 69, 73,
if the holder of part of the property pays the whole maintenance,
Ills remedy is by a suit for conlnhiiljon, (1867) 4 Bom H C. (A.C J.),
73.

(x) Snorjakoer v Natha Baksh (1885) 11 Cal, 102

(y) Maniha Gramani v Ellappa Chetty (1896) 19 Mad , 271

( 2 ) Do^e Thunmanabhatta v Krishna Tantri (1906) 29 Mad,

.508, Radha Madhub v Manohur Maker ji (1888) 15 Cal, 756 PC;
Razayet Hossein v Doolichand (1879) 4 Cal, 402, 409, Jogendra v.
Fidkiimari (1900) 27 Cal, 77, Krishna Pattar v Alamelii Animal
(1914) 16 MLT, 5.51, 25 T C , 7.59, Rattamma v Seshachalam (1927)
52 MLJ., .520 (where the case of a wife was distinguished from that
of a widow). Official Receiver, Cuddapah v Subbamma AIR 1927
Mad, 403 (wife) , Sectharamanujacharyulu \,Venhatasubbamma
54 Mad, 132 (applies to Court sales).

(a) Jogendra v Fulkumari Dassi (1900) 27 Cal, 77;
Amrita Lai Mitter v Manick Lai Mulhck (1900) 27 Cal , 551
(mother), Jogobandhii Pal v Rajendra Nath (1921) ,34 C.LJ., 29;
but see Baldeodas Bajona v Sarojini Dasi (1930) 57 Cal, 597,
(where the facts were different) ; Mohini Debt v. Puma Sastn Gupta
A.I.R. 1932 Cal,, 451, 36 C.W.N., 153.

PARAS. 699-700.] WHEN ENFORCEABLE AGAINST ALIENEE.

839

In the absence of a specific charge, the claim to
maintenance could prevail only where the vendor was acting
in fraud of the widow’s claim to maintenance and the pur-
chaser bought with notice, not merely of her claim but of the
vendor’s fraudulent intention (b). If the transfer was of all
the family property or of all jhe property that was available
for the payment of maintenance and if the purchaser was
aware of the circumstances of the family, the transfer was
subject to the widow’s right to maintenance (c).

§ 700. Section 39 of the Transfer of Property Act
as it stood before its amendment by Act XX of 1929, was
substantially to the same effect, but the above mentioned
distinctions have been swept away by the amendment. Sec-
tion 39, as amended, runs thus: “When a third person has
a right to receive maintenance, or a provision for advance-
ment or marriage, from the profits of immovable propertv,
and such property is transferred, the right may be enforced
against the transferee, if he has notice thereof or if the
transfer is gratuitous; but not against a transferee for con-
sideration and without notice of the right, nor against such
property in his hands”. Where the Act is in force (d), a
transferee for value with notice of the right to maintenance
takes it subject to the claim for maintenance (e) ; so also
where the transfer is gratuitous. But the right cannot be
enforced either against one who first obtained a transfer for
consideration without notice of the right or against one who
obtained a transfer for value without notice either from an
original transferee for value who had notice or from a

(b) Lakshman v. Satyabhamahai (1878) 2 Bom., 494, 524;

Kalpagathachi v. Ganapathi (1881) 3 Mad., 184; Mahalakshmamma v.
V enkataratnamma (1883) 6 Mad., 83; Ramkunwar v. Ram Dai (1900)

22 AIL, 326; Bhartpur State v. Gopal Dei (1902) 24 AIL, 160; Sham
Lai V. Bannu (1882) 4 AIL, 296; Behan Lalji v. Bai Rajbai (1899)

23 Bom., 342; Venkatammal v. Andyappa (1883) 6 Mad., 130; Kaveri-
ammal v. Subba Ayyar A.T.R. 1934 Mad., 734.

(c) Becha v. Mothina (1900) 23 AIL, 86; Bhagat Ram v. Mt,
Sahib Devi (1922) 3 Lah., 55; Abu Mohomed Barkat Ali v. Saraswati
Dasi (1926) 43 C.L.J., 604, A.I.R. 1926 CaL, 1068.

(d) The Act is not in force in the Punjab, the North-West
Frontier Provinces and the Scheduled Districts of Bombay.

(e) Where a transferee is liable, he ceases to he so when the
property passes out of his hands; Dharamchand v. Janki (1883) 5
AIL, 389. It has been held in several cases that where a charge is
created for maintenance by act of parties or by operation of law,
it IS binding on a transferee for value, whether he has notice of it
or not* Kuloda Prasad v. Jageshur (1900) 27 CaL, 194; Prosonno v.
Barbosa (1866) 6 W.R., 253; Somasundaram v. Unnamalai (1920) 43
Mad., 800 dissenting from Sham Lai v. Banna (1882) 4 AIL, 296 F.B.
and Gur Dayal v. Kaunsilla (1883) 5 AIL, 367; Bharatpur State v,
Gopal (1901) 24 All, 160; Mohini Debt v. Puma Sashi Gupta A.I.R.
1932 CaL, 451; Ramkunwar v. Amar Nath (1932) 54 AIL, 472.

Fraud.

Section 39
of the T. P.
Act.

840

MAINTENANCE.

[chap. XVIII,

Priority of
debts.

gratuitous transferee. No doubt the recent amendment to
section 100 of the Transfer of the Property Act expressly pro-
vides: “Save as otherwise expressly provided by any law for
the time being in force, no charge shall be enforced against any
property in the hands of a person to whom such property
has been transferred for consideration and without notice of
the charge” (/) . This distinction between a mortgage and
charge is immaterial in the context, foi under sec 39 of the
Act, notice of the right to maintenance is sufficient to enable
the person entitled to enforce it against the transferee,
whether he had notice or not of a charge created by agreement
or decree therefor. Section 100 itself saves the special provi-
sion in section 39.

§ 701. Where a Hindu disposes of his entire property by
gift or by will, without making any piovision for his widow,
the donee or legatee must hold the property subject to
the claim (g) The reason is that the right of a widow to
her maintenance arises by mairiage, and that of a“ daughter
by biith; it exists during the life of the father, and continues
aftei his death.

§ 702. Debts contracted by a Hindu take precedence ovei
the maintenance of his wife or widow or infant child as a charge
upon the estate ih) . Similarly the debts contracted by the
manager of a joint family from out of which a person is
entitled to be maintained take precedence provided the debts

(/) In Mu^Maina v. Ahsan Hussein Bohn (]938) 19 N L J., 254,
a charge effected by a decree ha*? been held not to recjniie notice See
Tayabali v Lilabai AIR 1934 Sind , 14

ig) Section 128 of the Transfer of Property Act Rule 1 of
Schedule III to the Succesbion Act, 1925 Jamna v Machila (1879)
2 All, 315 (donee), Becha v Mothini (1901) 23 All, 86, Ramanadan
V. Rangammal (1889) 12 Mad., 260, 268, F.B , Narbadabai v Mahadcs
(1881) 5 Bom, 99 (donee); Promotha Nath Roy v Nagandrabala
(1908) 12 CWN, 808, Kamakshi Ammal v. Knshnamma/ A.l.R
1938 Mad . 340, 1938 M.W N , 64

(h) Jayanti Subbiah v Alamelu Mangamma (1904) 27 Mad., 45
(widow); Somasundaramchetty v llnnamalai (1920) 43 Mad, 800
(where her maintenance was charged on the property prior to its sale) ;
Jamna Bhai Ammal v Balaknshna Tatvker (1927) 53 M.L.J , 176
(charge must be fixed and declared) ; Sowbagiammal v. Mamka (1917)
33 M.LJ., 601 See Johurra Bibi v. Sri Gopal (1876) 1 Cal., 470;
Sundar Smgh v Ram Nath (1926) 7 Lah , 12 (wife and child);
Jawahar Singh v. Pardemun Singh (1933) 14 Lah, 399 (wife and
child) ; Mt. Champa v Official Receiver^ Karachi (1934) 15 Lah., 9;
Adhiranee v. Shonamali (1876) 1 Cal, 365 (widow), Gur Dayal v.
Kaunsila (1883) 5 All, .367 (widow); Jamiat^ Rai v. Mt Malan
(1932) 13 Lah., 41 (widow).

PARAS. 702-703.] widow’s right of residence.

841

are binding on the family (i). Therefore, a purchaser of
property sold to discharge debts has a better title than a
widow who seeks to charge the estate with her mainten-
ance (;). In Somasundaram Chetty v. UnnamalaU it was
held that a charge on joint family properties created by a
decree for maintenance payable to the widow of a member
of a joint Hindu family takes precedence over the right of
a subsequent purchaser of the same properties in execution of
a money decree binding on the family (A). Where a widow
was allotted for her maintenance a part of the family pro-
perties of which she was placed in exclusive possession, her
husband’s creditor who obtains a decree against his sons
alone is not entitled to proceed against the property in her
hands in execution (/).

§ 703. It has been laid down that there is a distinction
between the right of a widow to continue to live in the ances-
tral family house, and her right over other parts of the
property. Accoidingly, where a man died leaving a widow
and a son, and the latter immediately on his coming of age sold
the family house, and the purchaser proceeded to evict the
widow, the High Court of Bengal dismissed his suit.
Peacock, C.J., held that the text of Katyayana was restrictive,
and not merely directory, and that the son could not turn
his father’s widow out of the family dwelling-house himself,
or authorise a purchaser to do so, at all events until he had
provided for her some other suitable residence im). And the
same has been held in Allahabad, where the son of the survivor
of two brothel s sold the dwelling-house, in part of which the
widow of his uncle was living. The Court held that she
could not be ousted by the purchaser of her nephew’s
rights (n). In similar cases in Madras and Bombay it was

(i) Lakshman v. Satyabhamabai (1877) 2 Bom, 494; Johurra v.
Sn Gopal (1876) 1 Cal., 470; Ramanadha v. Rangarnmal (1889) 12
Mad., 260, Mt Champa v. Official Receiver, Karachi (1934) 15 Lali.,
9 (business delits)

(;) Natchiarammal v. Copalahrishna (1878) 2 Mad., 126, Adhi-
ranee v. Shona Malee (1876) 1 Cal., 365; Johurra v. Sn Gopal (1876)
1 Cal., 470, Lakshman v. Satyabhama (1877) 2 Bom., 494; Sham Lai
V. Banna (1882) 4 All., 296; Gur Dayal v. Kaunsila (1883) 5 All.,
367; Ramanadan v. Rangammal (1889) 12 Mad., 260, Mt. Tara v.
Sarnp (1929) 10 Lah., 706.

(k) (1920) 43 Mad.. 800.

(/) Suryanarayana Rao Naidu v. Balasubramama (1920) 43 Mad.,
635.

(m) Mangala v. Dinanath (1869) 4 B.L.R. (O.C.J.), 72, 12 W.R.
(O.C.J.), 32; followed Bat Devkore v. Sanmukhram (1889) 13 Bom.,
101 .

(n) Gaiiri v. Chandramani (1896) 1 All., 262; Talemand v.

Rukmina (1880) 3 All., 353; Bhikham v. Pura (1900) 2 AIL, 141,

Widow’s
claim on
family house.

842

MAINTENANCE.

[chap. XVIII,

held that the sale must be made subject to the widow’s right
of residence (o), unless the sale was made for a debt binding
upon the family, and therefore upon the widow (p).

It is now settled that a private sale by the surviving male
coparcener which is not for family necessity or an execution
sale held for a decree debt not arising out of a family neces-
sity, will not entitle the purchaser to oust the widows of
deceased coparceners including a widowed mother as the
latter are entitled to reside in the family house till at any
rate other adequate provision is made for their residence (< 7 ).

The position of unmarried girls of the family,
who are not related to the surviving male coparcener as direct
descendants from him, but as sisters or cousins, is the same;
with this difference that they are entitled to maintenance and
residence only until marriage, while the widows of coparcen-
ers have the right until death or remarriage. But the wife and
unmarried daughters of the debtor cannot, it would seem, resist
the claim of the purchaser in Couit auction for possession.
Where even the undivided sons of a debtor can-
not attack a sale for the father’s debt, much less
can unmarried daughters and the wife question the validity
of his debts (r). But the mother, the widows of coparceners
and their unmarried sisters are under no such obligation with
respect to the debt of the last surviving male owner which
was not for necessity. The question whether a private sale
of a man’s family dwelling-house without necessity, can
deprive his wife and unmarried daughters of their right of
residence has not yet been settled ( 5 ).

§ 704. A right to future maintenance in whatsoever
manner arising, secured or determined, cannot now be

(o) Venkatammal v. Andyappa (1883) 6 Mad., 130, Dalsukhram
V. Lalluhai (1883) 7 Bom, 282 But see Jayanti Snbhiah v. Alamelii
Mangamma (1904) 27 Mad, 45

(p) Ramanaden v Rangammal (1889) 12 Mad, 260; Manilal v.

Baitara (1893) 17 Bom., 398. But see Somasundaram Chetty v.
IJnnamalai Ammal (1920) 43 Mad., 800, Jannatrai v. Mt. Malan
(1932) 13 Lah., 41, Rayyappararjii v Lakshmamma A.l R. 1937

Mad. 193.

iq) Ramanadhan v Rangammal (1889) 12 Mad, 260; Suryanara-
yana Rao Naidu v. Balasubramama Mudali (1920) 43 Mad., 635.

(r) Manilal v Bat Tara (1893) 17 Bom., 398, Jayanti Subbiah v.
Alamelii (1904) 27 Mad., 45, Ramzan v Ram Daiya (1918) 40 All., 96;
Cangabi v. Janki (1921) 45 Bom., 337, (1920) 43 Mad., 635 supra.

( 5 ) (1920) 43 Mad., 635, 639-640 supra.

PARAS. 704-705.]

MAINTENANCE.

843

transferred {t) , nor can it be attached in execution of a
decree (u).

§ 705. A Hindu widow or other person entitled to main-
tenance can sue to have it secured and be made a specific
charge on the joint family property (v). A widow’s right
to maintenance is enforceable against the whole family and
not only against the branch to which her husband belonged
which took by survivorship his undivided share {w). Where
the widow of a coparcener sues for maintenance after a parti-
tion, she cannot enforce her right against any of the surviving
coparceners, except those who have taken her husband’s
share (ac) .

(t) The Transfer of Property Act, Section 6 (dd) ; as to the
construction of the older clause (d), see Narbadabai v. Mahadeo
(1881) 5 Bom., 99, 103; Ram Annapurni v. Swaminatha (1911) 34
Mad., 7 (where maintenance was fixed by decree, it was held transfer-
able; Thimanyamm v. Venkatappa A.I.R. 1928 Mad., 713 F.B.; but
see Asad Ah v. Haidar Ah (1911) 38 Cal., 13 (future maintenance
cannot be transferred unless it has become already due) ; Raja of
Ramnad v. Chidambaram (1938) 42 C.W.N., 565 P.C.

(u) The Civil Procedure Code, section 60(1) (n) Haridas v Baroda
fCisAorc (1900) 27 Cal , 38; Pahkandy Mammud v. Krishnan Nair (1917)
40 Mad , 302

{v) Jayanti Subbiah v. Alamelu Mangamma (1902) 27 Mad., 45;
Mahalakshmamma v. V enkataratnamma (1883) 6 Mad., 83; Rama-
rayudu v. Sitalaksh mamma A.I.R. 1937 Mad., 915.

itv) Subbarayuhi v. Kamalavalh Thayaramma (1912) 35 Mad.,
147, Rangappaya Aithala v. Shiva Aithala (1933) 65 M.L.J., 410.

(x) Jayanti Narasimhan v, V enkatasubbamma (1932) 55 Mad., 752.

CHAPTER XIX.

IMPARTIBLE ESTATES.

Impartible
property may
be joint.

§ 706. Liability to partition is one of the commonest
incidents of joint family property, but it must not be sup-
posed that joint property and partible property are mutually
convertible terms. If it were so, an impartible estate could
never be joint property. The leverse however is the case.
Such estates as without being one’s own separate or self-
acquired properties are indivisible, are those which by a
special law or custom descend to one member of the family
(generally to the eldest) to the exclusion of the other
members.

Cannot be
created by
agreement*

The commonest instances of this class are the ancient
zamindaris or estates which originally were either in the
nature of a Raj or principality oi were feudatory estates
held on military seivice tenure such as the palayams of
South India or were royal grants of revenue for services,
such as Jaghiis oi Saranjams in Bombay (a). So also are
impartible those properties which under special family
custom or by an express sanad or grant from the Crown are
descendible to a single heir (b) ,

Of course, families holding partible properties cannot
constitute them into an impartible estate for the purpose of

(flf) As to palayams^ see Naraganti v Vengajna Naidu (1861) 9
M.I.A., 66, N(fFaganti v. Venkatachalapati (1882) 4 Mad, 250: “A
polliam IS in the nature of a Raj, il may belong to an undivided family,
but It IS not the subject of partilion, it can be held by only one
member of the family at a time, who is btyled the polhgar, the other
members of the family being entitled to a maintenance or allowance
out of the estate”, 9 M.I.A., 66, 86; the Ramnad case

(1901) 24 Mad, 613, 623 sqq, the V dayarpalayam case (1901)

24 Mad, 562, Appayasami v Midnapore Zamindari Company
(1921) 48 TA, 100, 44 Mad , 575 See Venkata Jagannadham v.
Veerabhadrayya (1921) 44 Mad., 643, 653 P.C. As to Jaghirs and
Saranjams, see Ramthandra v V enkatrao (1882) 6 Bom, 598, Narayan
V Vasudeo (1891) 15 Bom, 247, Madhavrav v. Atmaram (1891)

15 Bom, 519, Dattatraya v Mahadaji (1892) 16 Bom, 528,
Raghoji Rao v. Lakshman Rao (1912) 39 I.A., 202, 36 Bom., 639. As
to Babuana grants, see Laliteswar v Bhabeswar Singh (1908) 35 Cal.,
823.

(6) Baijnath Prasad v Tej Bah (1921) 48 I A., 195, 43 All, 228;
Chowdri Chintaman v. Nawlukho (1875) 2 I A., 263, 1 Cal., 153;
Yarlagaddu MalLikarjuna v. Yarlagadda Durga (1890) 17 I. A., 134,
13 Mad., 406, Thakiir Nitopal Singh v. Jai Singh (1897) 23 I.A., 147,
19 All, 1, Gurududhwaja v Saparandhwaja (1891) 27 I.A., 238, 23
All., 37, Martand Rao v Malhar Rao (1928) 55 I A., 45, 55 Cal., 403.

PAHA. 706.] PROPERTY ATTACHED TO OFFICES.

845

succession (c) . Nor is it possible to establish in modern times
families holding impartible estates except by statute or Crown
grant (d).

Another case in which property is prima facie impartible, Instances,
is where it is allotted by the State to a person in consider-
ation of the discharge of pai^ticular duties or as remuneration
for an office, even though the duties of office may
become hereditary in a particular family. An instance of
the sort is to be found in the case of lands held under
ghat wall tenure in Bcerbhoom, which are hereditary but
impartible (c). So in Madras, wheie the office of karnam or
village accountant, has become hereditary, the land attached
to the office is not liable to division (/). In Bombay, how-
ever, there are numerous revenue and village offices, such as
deshmuk, despandya desaU and patel, lemunerated by
lands originally granted by the State. These lands have,
in many cases, come to be consideied as puiely private pro-
perty of the family holding the office, though burdened with
the duty of defraying its expenses. In such cases, there is
no presumption that they are impartible; and a local or
family usage to the contraiy has to be made out (g).

So, an estate which has been allotted by Government to
a man of rank for the maintenance of his rank is indivisible,

(c) Vinayak Waman Joshi v. Gopal Han Joshi (1903) 30 I.A., 77,
27 Bom., 353; Adrishappa v. Gurushidappa (1880) 7 LA., 162, 4 Bom.,
494; Pirojshah v. Manibhai (1912) 36 Bom., 53; Palaniammal v.
Muthuvenkatachela (1925) 52 I.A., 83, 48 Mad., 254; Rajendra v. Rani
Raghubans (1918) 45 I.A., 134, 40 AIL, 470.

(d) (1925) 52 I.A., 83, 89 supra affirming 33 M.L.J., 759. The
Crown Grants Act (XV of 1895). The Oudh Estates Act (I of 1869).
Achal Ram v. JJdoi Partab (1883) 11 I.A., 51, 10 Cal., 511; Narmdar
V. Achal Ram (1893) 20 I.A., 77, 20 Cal., 649;' Debt Baksh v.
Chandrabhan Singh (1919) 37 I.A., 174, 32 AIL, 599. Some partible
estates have been made impartible in the hands of stranger auction
purchasers by the Madras Legislature.

(e) Lelanund v. Government of Bengal (1856) 6 M.I.A., 101, 125,
1 W.R., P.C. 20; Nilmoni v. Bakranath (1881) 9 I. A., 104, 9 Cal., 187;
Satya Narayan Singh v. Satya Nirinjan (1924) 51 LA., 37, 3 Pat., 183;
Durga Prasad v. Brajanath (1912) 39 Cal., 696 (Digwari tenure).

if) Venkata Jagannadha v. Veerabhadraya (1921) 48 LA., 244,
44 Mad., 643. The Madras Hereditary Village Offices Act (III of
1895), sec. 10 (3).

ig) Adrishappa v. Gurushidappa (1880) 7 LA., 162, 4 Bom., 494
(where on a partition, a portion is set aside for the discharge of duties,
the rest becomes partible) ; Vinayak Waman v. Gopal Han (1903) 30
I.A., 77, 27 Bom., 353; Ramrao v. Yeshvantrao (1886) 10 Bom., 327;
Gopalrav v. Trimbakrav, ib., 598; Gopal Han v. Ramakant (1897)
21 Bom., 458. Mahadevappa v. Kashirao A.I.R. 1923 Bom., 467;
Sahebgouda v. Basangouda A.I.R. 1931 Bom., 378, 33 Bom. L.R., 580;
Bapurao v. Knshtappa A.I.R. 1935 Bom., 380, 37 Bom. L.R., 599.
The Bombay Hereditary Offices Act (II of 1874), sec. 36.

{{46

impartible Estates.

[chap. XIX,

Onus.

Its incidents:
impartibility
and primo'
geniture.

ab otherwise the purpose of the grant would be fiustrated (h).
But where it is allotted for the maintenance of the family,
then il is divisible among the direct descendants of the family,
as the object is to benefit all equally, not to maintain a
special degree of state for one (i).

The discontinuance of services attached to a military or
othei service tenure does not by itself alter the natuie of the
estate, and render it partible (/).

S 707. Any one who alleges that an estate is impaitible
and descendible to a single heir must piove that it is so
eithei by its natuie or by special custom, eithei territorial oi
of the family. The special custom must be ancient
and invaiiable, and established by clear and unambiguous
evidence (A;). The Madras Impaitible Estates Act, 1904, gives
a long schedule of estates which it declares to be impartible.

Neither a confiscation by Government, nor sale for
arrears of revenue, of an impartible Raj, palayam, oi
tenure, where there is a restoration or re-grant of the estate
to the original owner or to another member of the family
necessarily involves the creation of a new tenure: the custom-
ary incidents of impartibility and primogeniture attached to
the family tenure will continue (/). But where the grant
IS not to the original owner but to another member of the
family and there is an intention to change the tenant while
continuing it in the family, the impartible estate will no
longer be the ancestral j>roperty of the family but will be

{h) Sec Kumar a Tirumalai Naik v. Bangaru Tirunialai (1898) 21
Mdd., 310.

X

(/) Visvanadha v. Bungaroo Mad Dec. of 1851, 87, 91, 95, Booloka
V. (lomarasawrny Mad. Dec of 1858, 74, Bodhrao v. Nursing Rao
(1856) 6 M.I.A., 426, Panchanadayan v. Ndakandayan (1884) 7 Mad.,
191; Vaidyanatha v Yogambal (1927) 50 Mad., 241. See Indian
Pensions Act (XXIII of 1871).

(/) Appayasami v. Midnapore Zamindari Co. (1921) 48 I.A., 100,
44 Mad., 575, Radhabai v. Anant Rao (1885) 9 Bom., 198, Ramrao v.
Yashwantrao (1886) 10 Bom., 327, Narayana v ChengalanWia (1887)
10 Mad., 1, the Udayarpalayam case (1901) 24 Mad., 562, 604-5.

(k) Ramalakshnu Animal v. Sivanantha (1872) 14 M.I.A,, 570;
see also Bircndranath v Mirtunjai Singh AIR 1934 P C , 100, 66
MLJ, 504 (Chandrapur Padampur Zamin) and Mangal Singh v Mt.
Sidhau Kiinwar (1935) 68 M.LJ., 448 P.C , where il was held that
the custom of impartibility was not made out. Mallikarjuna v Durga
(1890) 17 I.A., 134, 13 Mad., 406 See ante §§36, 39.

(/) The H unsapor e case. Baboo Beer Pertab Sahee v Rajendra
Pertab Sahee (1867) 12 M.I.A., 1, (1928) 55 I A , 45, 55 Cal., 403
supra, Sri Raja Venkata Appa Row v. Sri Rajah Rangayya Appa
Row (1905) 29 Mad, 437, Muhammad Afzal Khan v. Ghulam Kasim
Khan (1903) 30 I A , 190, 30 Cal., 843, Har Govind Stngh v. Collector
of Etah L1937J AIL, 292.

PARAS. 707-708.] ARE JOINT FAMILY PROPERTY.

847

the self-accfUired or separate estate of the grantee, the other
incidents remaining unaffected {m). As was said in MiUtu
Vadugunad/ia v. Dorai Singha, a mode of acquisition which
constitutes an impartible estate the self-acquisition of a member
of an undivided family, and thereby subjects it to rules of
devolution and of disposition^ different from those applicable
to ancestral property, does not thereby destroy its character
of impartibility (/i). The granting of a peimanent settle-
ment sanad under the Regulations does not affect the
character of estate. The Nuzvid case (o) has been explained
by the Privy Council as a case of creation of an estate which
could not be identified with an estate or title prior to the
sanad granting it (p). In the Vdayarpalayam case. Lord
MacNaghten observed that it must be taken to be settled
that the acceptance of a sanad in a common form, under
Regulation XXV of 1802 (Madras) does not of itself and
apart from other circumstances avail to alter the succession
to a hereditary estate (^). In Baijnath Prasad Singh v. Tej
Ball Prasad Singh where an ancient family which had been
dispossessed of its Raj had its family possessions restored to
it, it was held that the estate was ancestral property and not
self -acquired (r).

§ 708. It is now settled that the fact that an estate is
impartible does not make it the separate or exclusive property
of the holder: where the propeity is ancestral and the holder
has succeeded to it, it will be part of the joint estate of the
undivided family ( 5 ).

As a result of the decisions of the Judicial Committee in
Rani Sartaj Kuari v. Deoraj Kuari and the first and second
Pittapur cases, it was supposed that an impartible estate was

(m) (1867) 12 1 supra; Katama Nachiar v. Rajah of

Shivagunga (1863) 9 M.I.A., 539.

(n) (1881) 8 I.A., 99, 3 Mad., 290, Katama Nachiar v. Rajah
of Shivagunga (1863) 9 M.I.A., 539; Ram Nandan v. Janki Koer
(1902) 29 I.A., 178, 29 Cal., 828; Uargovind v. Collector of Etah
[1937] AIL, 292.

(o) Rajah Venkata Narasimha v. Rajah Narayya (1879) 7 LA., 38,
2 Mad., 128.

(p) (1881) 8 LA., 99, 112 supra, 3 Mad., 290; bee (1903) 30 LA.,
190, 30 Cal., 843 supra,

• {q) (1905 ) 32 LA., 261, 28 Mad., 508, 515 affg. (1901) 24 Mad.,
562, 605-7.

(r) (1921) 48 LA., 195, 200, 43 AIL, 228.

(s) Shibaprasad Singh v. Prayag Kumari Dehee (1932) 59 LA.,
331, 59 CaL, 1399, Ratap. Singh v. Tanain Singh A.I.R. 1936 Nag., 80
(cubtom of impartibility not negatived by notional division).

Impartible
estate joint
property.

848

impartible Estates.

[chap. XIX,

in no sense joint family property (^). But the decisions of
the Privy Council in Baijnath Prasad Singh v. Tej Bali Prasad
Singh {u) ^ Konammal v. Annadana {v) , Shibaprasad Singh
V. Prayag Kumari Debee (w) and Gollector of Gorakpur v.
Rani Sunder Mai {x) ^ have now established that an ancestral
impartible estate is joint family property notwithstanding the
fact that there is neither a right to partition nor a right to re-
stiain any alienation. The custom of impartibility undoubtedly
affects the ordinary incidents of joint family propeity. But
as was laid down in the Tipperah case, the general law, except
to the extent to whi^h it is superseded by custom, still
regulates all beyond il(y). Sir Dinshah Mulla delivering
the judgment of the Judicial Committee in Shibaprasad
Singh V. P/ayag Kumati Debee restated the law on the sub-
ject fully: ‘"Impartibility is essentially a cieature of custom.
In the case of oidmaiy joint family propeity, the members
of the family have. (1) the light of partition, (2) the right
to restrain alienations by the head of the family except for
necessity; (3) the right of maintenance; and (1) the right
of survivorship. The hrst of these rights cannot exist m
the case of an impaitible estate, though ancestral, fiom the
veiy nature of the estate. The second is incompatible with
the custom of impartibility, as laid down in Sartaj Kuan’s
case (-:) and the first Pittapiu case [a) , and so also the third,
as held in the second Pittapui case (6). To this extent the
general law of the Mitakshara has been supeiseded by custom,
and the impartible estate, though ancestral, is clothed with
the incidents of self -acquired and sepaiate propeity. But
the right of survivoiship is not inconsistent with the custom
of impaitibility. This right, theiefoie, still remains, and
this is wh^ was held in Baijnath’ s case (c). To this extent
the estate stiU retains its character of joint family property,

it) Ram Sartaj Kuan v. Deoraj Kuan (1888) 15 I.A., 51, 10 AIL,
272, the first Pittapur cabe, Venkata Surya v. Court of Wards (1899)
26 1 A., 83, 22 Mad., 383, the second Pittapur case, Rama Rao v.
Rajah of Pittapur (1918) 45 I.A., 148, 41 Mad., 778.

iu) (1921) 48 l.A., 195, 43 AIL, 228.

(V) (1928) 55 LA., 114, 51 Mad., 189
Uv) (1932) 59 I.A., 331. 59 Cal., 1399.
ix) (1934) 61 I. A.. 286, 56 AIL, 468.

. (y) The Tipperah case, Neelkisto v. Beerchunder (1869) 12 M.I A ,
523.

iz) (1888) 15 l.A. 51. 10 All, 272

ia) (1899) 26 i A. 83. 22 Mad., 383.

ib) (1918) 45 I A, 148, 41 Mad., 778.

(c) (1921) 48 LA., 195, 43 AIL, 228.

•PARA, 708.] COPARCENARY RIGHT REAL BUT RESTRICTED.

and its devolution is governed by the general Mitakshara
law applicable to such property. Though the other rights
which a coparcener acquires by birth in joint family pro-
perty no longer exist, the birth-right of the senior mender
-to take by survivorship still remains. Nor is this right a
mere spes successionis similar to that of a reversioner suc-
ceeding on the death of a Hindu widow to her husband’s
estate. It is a right which is capable of being renounced and
•surrendered” (d).

Again on a review of the authorities, in the very recent
case of Collector of Gorakpur v. Ram Sundar Maly Lord
Blanesburgh observed (c) : “(1) The decisions of the Board
in Sartaj Kuari v. Deoraj Kuari (/) and the first Pittapur
case (g) appeared to be destructive of the doctrine that an
impartible zamindari could be in any sense joint family
property. (2) This view apparently implied in these cases
was definitely negatived by Lord Dunedin when delivering the
judgment of the Board in 1921, in Baijnath Prasad Singh's
case (h), (3) One result is at length clearly shown to be that

there is now no reason why the earlier judgments of the Board
should not be followed, such as, for instance, the Challapalli
case (i), which regarded their right to maintenance, however
limited, out of an impartible estate as being based upon the
joint ownership of the junior members of the family with
the result that these members holding zamindari lands for
maintenance could still be considered as joint in estate with
the zamindar in possession”.

Following these decisions, the Madras High Court
has held, in Sellappa v. Suppan that the right of
survivorship is founded on co-ownership (/), dissenting
from its former decision in Ramasarni Naik v.

id) (1932) 59 I A., 331, 345, 59 Cal., 1399, 1413. The dictum that

the right to maintenance is incompatible with the custom of

impartibility IS no longer correct after the decision in Collector of Gorakh-
pur V. Ram Sundar Mai (1934) 61 I.A., 286, 56 All., 468. See Naraganti
V. Venkatachelanati (1882) 4 Mad., 250, 266 approved in the Udayar-
palayam case (1905) 32 I.A., 261, 28 Mad., 508 and by Lord Dunedm
in Baijnath Prasad Singh v. Tejbali Prasad Singh (1921) 48 LA , 195,
43 AIL, 228; Sri Knshnayya Rao v. Raja of Pittapur (1933) 60 I.A.,
336, 351, 57 Mad., 1, Krishan Kishore v. Commr, of I.T, (1933) 14
Lah., 255, 264.

(e) (1934) 61 I.A., 286, 301-302, 56 AIL, 468, 485.

(/) (1888) 15 LA.. 51. 10 AIL, 272.

(g) (1899) 26 I.A., 83, 22 Mad., 383.

(A) (1921) 48 I.A., 195, 43 All, 228.

ii) (1900) 27 I.A., 151, 24 Mad., 147.

• (y) [19371 Mad., 906. A successor taking by survivorship does
not require a succession certificate to execute decree obtained by his
predecessor: Ram Ranhijaya v. Parmatmanand A.I.R. 1938 Pat., 390.

56

Survivordiip.

Maintenance
based on joint
ownership.

850

IMPARTIBLE ESTATES.

[chap. XIXy,

Right of
alienation*

Sartaj Kuans
case.

Ramasami Chetty {k) that the junior member has no right
of co-ownership but only a spes successionis,

§ 709. Until the decision of the Privy Council in Rani
Sartaj Kuan v. Deoraj Kuan ( /) . it was settled that the holder
of an ancestral impartible estate could not alien or encumber
it beyond his own life, so as to' bind the coparceners, except
for purposes beneficial to the family and not merely to
himself (m), for as most of the estates were granted om
military tenure, no one of the successive tenants could deal
with the land so as to deprive the next holdei of the source
from which his duties might be discharged (n). Prior to
that decision there had been decisions in the High Court of
Bengal denying the joint family character of an impartible
estate (o) .

In 1888, however, a decision was given by the Privv
Council, in a case governed by the Mitakshara law, which,
struck at the root of all previous rulings (/?). In that case,
the holder of an impartible estate had made a gift of several
villages to his junior wife and his son questioned the validity
of the alienation Sir Richard Couch, delivering the judg-
ment of the Judicial Committee observed* “The property m
the paternal or ancestral estate acquired by birth under the
Mitakshara law is, in their Lordship's opinion, so connected
with the light to a paitition. that it does not exist where
there is no right to it”. This decision was followed in the*
first Pittapur case where the right of the last holder to alien-
ate by will w as upheld {q) . It is now settled that the holder
of an impartible estate can alienate it by gift inter vivos or

(A:) (1907) 30 Mad, 255

(/) (1888) 15 I A, 51, 10 All, 272

(m) Beresjord v. Ramasubba (1890) 13 Mad, 197,

(n) This passage was cited with approval in Appayasami v.

Midnapore Zamindari Co (1921) 48 I A, 100, 108 The series

decisions in the Madras province which laid down the inalienability
of these estates on varying grounds will be found in paras 312 and
313 of the 4th edition of this work and most of them are discussed in
the judgment m the Pittapur case (1899) 26 LA., 83, 91, 22 Mad., 383.

(o) Thakoor Kapilnanth v. The Govt (1874) 13 Beng. L.R., 445,
22 W.R., 17 (where the impartible estate held by a Mutiny rebel was
confiscated and the right of the rebel’s elder son to succeed by
survivorship was negatived) , Uddoy Adittya Deb v. Jadublal (1880)
5 Cal., 113, on appeal, (1882) 8 I.A , 248, (The Patkoom Raj case);
Anundlal v Dheraj Gurrood (1850) 5 MIA, 82 (The Pacheet Raf
case) ; Narain Khootia v Lakenath (1881) 7 Cal., 46.

•(p) (1888) 15 I A., 51, 10 All., 272 supra,

(q) (1899) 26 I.A., 83, 22 Mad., 383; Protop Chandra Deo ^
Jagdish Chandra (1927) 54 I A., 289, 54 Cal., 955.

PARAS. 709-709-a.] madras impartible estates act.

851

by will although the family is undivided unless by a family
custom or by the condition of the tenure, he is precluded
from so doing. The absence of any instance in which a
previous holder has alienated the estate by will is not suffi-
cient evidence to establish a custom (r) . This rule does not
obtain in respect of impartible estates in the province of
Madras, since the Madras Impartible Estates Act, 1904.

§ 709 A. The Madras Impartible Estates Act, 1904, has Madras
restored in the province of Madras, the Mitakshara rule
applicable to joint families as interpreted and applied to ® ®
impartible estates in the earlier decisions of Courts. Section
4(1) of that Act runs as follows: ‘‘The proprietor of an im-
partible estate shall be incapable of alienating or binding by
his debts, such estate or any part thereof beyond his own
lifetime unless the alienation shall be made, or the debt in-
curred, under circumstances which would entitle the managing
member of a joint Hindu family, not being the father or
grandfather of the other coparceners, to make an alienation
of the joint property, or incur a debt, binding on the shares
of the other coparceners independently of their consent” ( 5 ).

The effect of this Act is therefore to emphasise the character
of an ancestral impartible estate as joint family property
and it does not admit either the doctrine of the son’s liability

(r) Bmjnath Prasad v. Tejbali Prasad (1921) 48 I.A., 195, 43
All., 228, Shibaprasad Singh v. Prayag Kumari Debee (1932) 59 I. A.,
331, 59 Cal., 1399; Collector of Gorakhpur v. Ram Sunder Mai (1934)
61 I. A., 286, 303, Raja. Madhasudan v. Khestabasi Sahu (1929) B
Pat., 932, Ulagalum Perumal Sethurayar v. Subbalakshmi (1936) 71
M.L.J., 1, Gopal V. Raghunath (1905) 32 Cal., 158 (estate inalienable
by custom can be alienated for legal necessity) ; but see (1929) 8
Pat., 932 supra Sellappa v. Suppan [1937] Mad., 906 (expenses of
daughter’s marriage are valid legal necessity for which the holder can
alienate) ; see Sivasubramania v. Krishnammal (1895) 18 Mad., 287,
for a special custom of inalienability.

( 5 ) Sellappa v. Suppan [1937] Mad., 906. Some special powers
and modifications are contained in sub-sections (2) to (5) of section 4
and in sections 5 and 6 of the Act. It is open to the owner of an
impartible estate to provide for succession to it in default of heirs
(section 4, sub-section 5). The proprietor requires the Collector’s
consent to borrow for payment of land revenue (s, 6). The Act doe»
not affect alienations or debts, made or incurred, prior to it (s. 7).
Where a consent decree for sale is made, objection to it can be taken
even in execution as the Act enacts a rule of public policy. Raja
Ramachandra v. Akella Venkata Lakshminarayana (1919) 37 M.L.J.,.
65, Raja of Kalahasti v. Venkatadri (1927) 50 Mad., 897. The head-
note m Nagappa Chetti v. Brahadamba (1935) 62 I. A., 70, 72, 58
Mad., 350 is inaccurate. Though the estate was included in the
schedule to the Act, the debts in that case were prior to it and the
decision was on the view that it was not established that impartibility
attached to the estate, prior to the commencement of the Act.

852

IMPARTIBLE ESTATES. [CHAP. XIX,

for father’s debt or the father’s power to sell for an

antecedent debt ( 5 ^).

But, of course, the Madras Impartible Estates Act
does not apply to an estate or part of it, even

though it be a scheduled estate, which estate or part

had been validly alienated prior to the Act (s. 7). Nor

can sec. 4 of the Act restrict the powers of an owner,
who, at the commencement of the Act, came into possession
of an impartible estate not as an heir but under a valid gift
or devise ( 5 ^).

Income and § 710. The right of joint enjoyment which is ordinarily

accumulations, incident to a coparcenary, where the joint estate is partible,
is excluded by the custom of impartibility and primogeniture.
Accordingly the income of an impartible estate and the ac-
cumulations of such income are the absolute propertv of the
holder. They are not an accretion to the estate as in the
case of an ordinary joint family estate (^). None of his
kindred can therefore claim a share of the income or an
account of the mode m which he has spent his income (a).
There is neither coparcenary in such savings, nor survivor-
ship (v). So also arrears of rents or income which accrued
during the last holder’s life would pass to his own heirs and
not to the heir who takes the estate by survivorship (w).

Power of 711 It has long been settled that the holder of an

incorporation, impartible estate can incorporate other properties belonging
to him with that estate so as to make them impartible and

( 5 ^) [19371 Mad, 906, 908 supra, V enkatalingama v. Arunachalam
Chettiar (192*4) 19 MLW, 132.

’ ( 5 -) IHagalum Perumal v. Subbalakshmi (1936) 71 MLJ, 1.

The definition of a proprietor of an impartible estate requires that he
should be entitled to possession thereof as a single heir under a special
family custom or under the general custom in Southern India

(t) Shibaprasad v Prayag Kumari Dcbee (1931) 59 I A, 331,

59 Cal, 1399; Jagadamba Kumari v. Narain Singh (1923) 50 I A., 1,
2 Pat., 319, Parbati Kunavar v Jagdish Chunder (1902) 29 I A., 82,
29 Cal., 433, Janki Per shad v Dwarka Per shad (1913) 40 I A , 170,
35 All., 391, Murtuza Husain Khan v Mahomed Yasin (1916) 43 I.A ,
269, 38 All, 552, Someshwari v Maheshwari (1936) 63 I A , 441, 16
Pat., 1, affirming 10 Pat, 630; Balasubramanya v Subbayya (1938) 65
I A., 93, 104, affg. (1935) 69 M L J , 632

(u) Maharajulun Garu v. Rajah Row (1869) 5 M H.C , 31, 41;
Lutchmun Rao v. Terimul Row 4 Mad. Jur., 241.

(v) See Neelkisto Deb v. Beerchunder (1869) 12 MIA, 540.

{w) Aparna v Shiba Prasad (1924) 3 Pat., 367; Gurusami v,
Pandia Chinna Thambiar (1921) 44 Mad., 1.

PARA. 711 .]

INCORPORATION OF ACQUISITIONS.

85a

descendible to a single heir {x ) . This is not an exception
to the rule that a man cannot alter the law of succession
to his property, for the custom governing the family is itself
law and new acquisitions are only brought within its scope.
The only exception is, it would seem, where an estate is
granted by the Crown under a primogeniture sanad as in
Rajendar Bahadur^ s case

Where a zamindar has not so incorporated his acquisitions,
they will devolve according to the ordinary rules of Hindu
law (y) . Along with, or in default of his male issue,’ his
widow as well as his widowed daughter-in-law and grand-
daughter-in-law would take his savings and arrears of rent
due to him, before his brothers or their issue (z).

It has been held that movable property cannot form an
accretion to an ancestral impartible estate but that only
immovable property can be incorporated with it (a).

No presumption of an intention to incorporate can be
drawn from the blending of the income of the self-acquired
property with the income of the estate as in the case of an
ordinary joint family estate; for the income of the impartible
estate is the holder’s absolute property (6). The intention
of the acquirer to incorporate his acquisitions with the estate
may be either express or implied from his conduct or sur-
rounding circumstances. The presumption of accretion is
more readily drawn where the acquisitions were made by

t (x) Shiba Prasad v. Prayag Kumari (1932) 59 LA., 331, 348-50,
352-3; Lakshmipathi v. Kandasami (1893) 16 Mad., 54; Ramasami v.
Sundaralingasami (1894) 17 Mad., 422, 444; (1921) 44 Mad., 1 supra,
V isvanathaswami v. Kamulu Ammal (1915) M.W.N., 968; Sarabjet v.
Indarjet (1905) 27 All., 203, the U dayarpalayam case (1901) 24 Mad.
at 610, the Ramnad case (1901) 24 Mad. at 636.

{x^) (1918) 45 I.A., 134, 40 AIL, 470, explaindd m (1932) 59
I.A., 331, 351-2.

iy) Parbati v. Jagadis Chunder (1902) 29 I.A., 82, 29 Cal., 433;
Janki Pershad v. Dwark Pershad (1913) 40 I.A., 170, 45 All., 391;
Rani Jagadamba v. Narain (1923 ) 50 I.A., 1, 2 Pat., 319.

(z) The widow took only in default of male issue before the
recent Hindu Women’s Rights to Property Act (XVIII of 1937).

(а) Shibaprasad Singh v. Prayag Kumari Debee (1932) 59 I. A.,
331, 353, 59 Cal., 1399; Maharajalungaru v. Rajah Row (1869) 5
M.H.C, 31, 41. Both in Lakshmipathi v. Kandaswami (1893) 16
Mad., 54 and in V isvanathasami v. Kamulu Ammal (1915) M.W.N.,
968, cattle used for cultivating pannai lands in an impartible estate
were themselves held to be impartible and treated as accretions to
the estate. This can no longer be law.

(б) Rani Jagadamba v. Narain (1923) 50 I.A., 1, 2 Pat., 319;
Har Govind Singh v. Collector of Etah [1937] All., 292 (joint account
and joint employees, no proof of incorporation) ; Sellappa v. Suppan
£1937] Mad.. 906.

Evidence of
incorporation.

854

IMPARTIBLE ESTATES.

[chap. XIX,

Rules of
succession.

previous holders and they devolved from predecessor to
successor arid were enjoyed along with the estate (c).

§ 712. Next, as to the succession to an impaitible estate.
According to the decision in the Sivaganga case, the fact
of a Raj being impartible does not affect the lule of
succession to it (d). In considering who is to succeed on
the death of the owner of the estate, the rules which govern
the succession to a partible estate are to be looked at: the
question always is what would be the right of succession
if instead of being an impartible estate, it were a
partible one (e). The general principles governing the suc-
cession to such estates were fully stated by the Madras High
Court in Subrarnanya Pandiya v. Sivasubramanya ( /) and
were approved by the Privy Council in Parbati Kunwar v.
Chandrapal Kunwar (g). The Madras High Couit said:
“The first of them is that a rule of decision in regaid to
succession to impartible property is to be found in the
Mitakshara law applicable to partible property, subject to
such modifications as naturally flow from the character of
the property as an impartible estate. The second principle
is that the only modification which impartibility suggests in
regard to the right of succession, is the existence of a special
rule for the selection of a single heir when there are se\eral
heirs of the same class, who would be entitled to succeed
to the property if it were partible under the general Hindu
law. The third principle is that, in the absence of a special
custom, the rule of primogeniture furnishes a ground of

(c) Shibaprabad v. Frayag Kiimari (1932) 59 I.A., 331, 350, 59
Cal, 1399, Lak^mipathi v kandasami (1893) 16 Mad, 54, Ranin^
sami V Sundarlingasanu (1894) 17 Mad, 422, 444, Sarabjit v Indrajit
(1905) 27 All, 203, the U dayarpalayam case (1901) 24 Mad, (610);
the Ramnad cast* 24 Mad, (636), Gnrusami Pandia v. Pandia Chinna
Thambiar (1921) 44 Mad, 1, Visvanathasami v Kaniulu Ammal 1915
M.W N , 968, 1014 In Someshwar Prasad v Maheswari Prasad (1936)
63 I A , 441, 447, 16 Pat , 1, where the owner of an impartible estate was
a lunatic and the Court of Wards assumed superintendence of the estate,
two villages which had been given out of the estate as Khorposh grants
were purchased on behalf of the owner of the estate by the then manager.
It was held that as the owner was a lunatic, no question of his inten-
tion to incorporate arose and the case was decided on the ground
that there was no merger apart from any intention and conduct of
the owner. This does not affect the general line of cases

id) (1863) 9 MIA, 539.

(e) Katama Nachiar v. Raja of Sivaganga (1863) 9 M LA , 539,
589, Raja Jogindra v. Nityanund (1890) 17 I.A., 128, 131, 18 Cal., 151.

(/) (1894) 17 Mad. 316, 325-327; Kali Krishna v. Raghunatha Deb
(1904) 31 Cal., 224. See also Sahebgouda v. Basavgouda A.I R. 1931
Bom., 378, 33 Bom. LR., 580.

(g) (1909) 36 LA.. 125. 31 AIL, 457.

TARAS. 712-714.]

PRIMOGENITURE.

855

preference. In determining who the single heir is according

to these principles we have first to ascertain the class of

heirs who would be entitled to succeed to the property if

it were partible, regard being had to its nature as coparcenary

or separate property, and we have next to select the single

heir by applying the special rule indicated above” (h).

•

§ 713. In general, the custom is that such estates descend
by the law of primogeniture (i) . In that case, the eldest son is
the son who was born first, not the first born of the senior,
or even of the first married wife (/), unless in families
where by custom, the sons take rank according to the seniority
of their mothers (/:). In Ramasami Kamaya Naik v. Sun-
daralingasami, a custom was made out by which among
Kumbla Zamindars, a son by a senior wife has a preferential
right of succession over a son by a junior wife, although the
latter may be the elder (Zj.

Where the contest is between an adopted son and a son
born subsequently, the latter will be preferred to the adopted
son {m).

§ 714. The eldest son’s line must be exhausted before
the succession will pass to the next senior line; in other
wolds, the nephew in the senior line will exclude the
uncle (n) ; for, “when by the custom of primogeniture, the

(h) (1894) 17 Mad.. 316. 325.

(i) Thakur hhri Singh v. Baldeo Singh (1884) 11 LA., 135, 10
Cal., 792; Abdul Aziz Khan v. Appayyasami (1903) 31 I.A . 1, 27
Mad., 131; Rajah Udaya v. Jadab Lai (1881) 8 I.A., 248, 8 Cal., 199.
Section 2 (3) of Madras Impartible Estates Act II of 1904 refers to the
^general custom* regulating succession to impartible estates in South
India.

(;) Ramalakshmi v. Sivanantha (1872) 14 M.I.A.f 570; Ramappa
V. Bangari (1880) 8 I.A, 1, 2 Mad., 286; Jagadish Bahadur v. Sheo
Partab Singh (1901) 28 I.A., 100, 23 All., 569.

(A*) Ramasami v. Sundarlingasami (1894) 17 Mad., 422.

(/) (1894) 17 Mad, 422, affirmed in (1899) 26 I.A., 55, 22 Mad.,
515. Another ground of preference relied upon by the High Court
was in favour of a son by a wife of same class and rank as against
an elder son born to a wife of inferior rank and class. (See 17 Mad.,
422, 436.)

(m) Yenumola v. Ramandora (1870) 6 M.H.C., 93; Naraganti v.
V enkatachalapathi (1882) 4 Mad., 250.

(n) Ramayya v. Ranganayakamma R.A. 28 of 1877 (Madras High
Court) — not reported — reaffirmed in the Naraganti case' (1882) 4 Mad.,
250, which was approved by the Privy Council in the U dayarpalayam
case (1905) 32 I.A., 261, 28 Mad., 508 and in Baijnath v. Tej Bali
(1921) 48 I. A., 195, 43 All., 228. The decision of the Privy Council
jn Ramayya v. Ranganayakamma which went on another point as to
-whether the arrangement between the parties amounted to a separation
is reported in (1879) 5 C.L.R., 439.

Eldest son
succeeds.

The senior
line excludes
others.

856

IMPARTIBLE ESTATES.

[chap. XIX,

Right of
representa-
tion.

Illegitimate

son.

Nearness
of blood.

senior male in a class of heirs excludes the others, the exclu-
sion continues not only during, his life, but so long as he
leaves lineal heirs competent to succeed to him. If an
impartible estate devolves on the eldest of three sons by the
custom of piimogeniture to the exclusion of the rest, the pre-
ference due to seniority of birth is not a mere personal
privilege, but a heritable interest which descends to his lineal
heirs as his representatives. The doctrine of representation
as between the father and his three lineal descendants, con-
sequent on the notion that he is reboin in them, obtains on
each occasion the succession opens up and the eldest son’s-
right to exclude his brother is continued to his lineal male
heirs” (o) .

§ 715. Where the holder of an impartible estate, being
a Sudra, leaves a legitimate son and an illegitimate son, the
former succeeds to the estate and on his death, without
leaving male issue, the illegitimate son succeeds by survivor-
ship. This IS the result of the exceptional coparcenarv
which is deduced from the passage in the Mitakshara in
Chapter I, Section xii ip). But this rule will apply only
wheie the impartible estate is the separate property of the
father and not the property of the undivided family consist-
ing of the father, his brothers, uncles and nephews. In that
case, on the death of the legitimate son of the last holder,
the succession will devolve by survivorship not on the illegiti-
mate son but on the nearest coparcener of the next senior
line. Where there are coparceners, the illegitimate son will
be excluded and where there are no cooparceners, the widow
will exclude him (q),

§ 716. Nearness of blood is no ground of preference under
the Mitakshara law in cases of disputed succession by survivor-
ship to coparcenary property which is partible; it is likewise
no ground of preference when such property is impartible.
Therefore in a competition between a brother of the half-
blood who IS senior in age and a brother of the full blood
who IS junior in age, the former is entitled to succeed to ther
estate (r). But where the impartible estate was the separate

(o) Muttu Vaduganatha v. Periasann (1893) 16 Mad., 11, 18»
affirmed in (1896) 23 I.A., 128, 19 Mad., 451

(p) Raja Jogendra v. Nityanund (1890) 17 I. A., 128, 18 Cal., 151..
iq) Parvati v Thirumalai (1887) 10 Mad, 334, Kamulu v. Visva-

nathasami (1915) M W.N , 968, 981, 30 M.L.J., 451, on appeal, (1923)
50 I.A., 32 , 46 Mad., 167. The illegitimate son will be excluded by
the adopted son.

(r) Subramanya v. Sivasubramanya (1894) 17 Mad, 316.

PARAS. 716-718.] SENIORITY OF LINE.

857

property of the last holder, the brother of the full-blood
would, on the analogy of succession to partible property, be
preferred to the brother of the half-blood. Under the Daya-
bhaga law, as there is no survivorship even in respect of an
impartible Raj or zamindari, the brother of the full-blood
will be preferred to the brother of the half-blood. This was
decided in the Tipperah case ( 5 ) which laid down that no
rule of survivorship exists in the case of impartible estates,
contrary to the decision in the Shivagunga case (^) . But the
error has been corrected by Lord Dunedin in Baijnath Prasad
Singh V. Tej Bah Prasad Singh (it) who pointed out that the
Tipperah case ( 5 ) was one under the Dayabhaga and not
under the Mitakshara law.

§ 717. Where a joint family holds an ancestral im-
partible estate, on the death of the holder, leaving no male
issue, succession is governed by survivorship and it is further
settled that “when impartible property passes by survivorship
from one line to another, it devolves not necessarily on the
coparcener nearest in blood, but on the nearest coparcener
of the senior line” (v).

§ 718. On the death of the last surviving member of the
coparcenary in whom the estate was vested, the heirs to his
separate property take it {w) ; just as in the case of a partible
estate, so too, where the impartible estate has become the sepa-
rate property of the holder, the rule of survivorship no longer
obtains (a;) . In the absence of the widow, daughter or
daughter’s son or the mother, the succession devolves on the
collaterals who are nearest in blood. Where however there are
several collaterals of equal degree but of different branches.

(s) (1869) 12 523.

(0 (1863) 9 539.

(m) (1921) 48 I. A., 195, 202, 43 AIL, 228. The error was previously
pointed out m (1894) 17 Mad., 316, 325-7 supra and in (1901) 24
Mad., (609) .

(v) Naraganti v. V enkatachelapati (1882) 4 Mad, 250, 267, followed

by Muthusami Iyer, J., in Muttuvadaganadha v. Periasami (1893) 16
Mad., 11, 16, affd. (1900) 23 LA., 28, 19 Mad., 451; Kachi Kaliyana
V. Kachi Yuva (1905 ) 32 I.A., 261, 28 Mad., 508; Baijnath v. Tej Bah
(1921) 48 I. A., 195, 43 AIL, 228; Shiba Prasad v. Prayag Kumari

(1932) 59 LA., 331, 59 Cal., 1399; Collector of Gorakhpur v. Ram

Sunder Mai (1934) 61 LA., 286, 56 AIL, 468; Sahebgouda v. Basan^
gouda A.LR. 1931 Bom., 378; Har Govind Singh v. Collector of Etah

[1937] AIL, 292; Konammal v. Annadana (1928) 55 LA., 114, 51

Mad., 189.

(w) Yenumala v. Ramandora (1870) 6 M.H.C., 93, 101.

(x) Katama Nachiar v. Rajah of Shivgunga (1863) 9 M.LA., 539;
Konammal v. Annadana (1927) 55 LA., 114, 51 Mad., 189; Ulagalum
Perumal Sethuraya v. Subbalakshmi (1936) 71 M.L.J., 1.

From one
line to
another.

Reversionary

succession.

858

IMPARTIBLE ESTATES.

[chap. XIX,

Succession
of women.

the senior representative of the senior line is the preferential
heir (y). Muttusami Ayyar, J., in Muttu Vaduganatha Tevar
V. Dora Singha Tevar was inclined to the view that in such
a case- the eldest amongst the heirs of equal degree should
be preferred (z). The decision of the Madras High Court
in Giiruswami v. Pandia Chinna Thamhiar was to the effect
that in a case of collateral succession, though the rule of
seniority of the line is not applicable in the first instance
but only the Mitakshara rule of nearness of blood, the former
applies for the choice of one from among those of equal
degree (a) . The result is that a representative of a senior
branch, though younger in age, is preferred to a representa-
tive of a junior branch, though older in age.

In a case in Madras, a special custom of dayadipattam^
according to which the senior-most of the dayadis descended
from the common ancestor is entitled to succeed irrespective
of seniority of branch or nearness or blood was held to
be made out (b).

In cases governed by the Dayabhaga, the heir will be the
eldest member of the class of persons who will be entitled
to succeed to the property if it were partible.

§ 719. Women, in the absence of a special custom to
the contrary (c| are entitled to succeed to impartible pro-
perty where they would succeed to it if it were partible.
Accordingly the claims of the widow (d), the daughter (e)

(y) Gurusami v. Pandia Chinna Thamhiar (1921) 44 Mad., 1.

(r) (1881) 3 Mad., 290, 323, 327.

(«) (1921) #44 Mad., 1, following Nannder v. Achal Ram (1893)
20 Cal., 649 P.C. It was a decision however under the Oudh Estates
Act I of 1869. In Debt Baksh v. Chandrahan Singh (1910) 37 I.A.,
168. 32 All., 599, in construing a sanad in respect of an estate entered
in list 5 under the Oudh Estates Act I of 1869, which provided for
succession by primogeniture, the Judicial Committee held that it
meant lineal primogeniture.

(6) Sivasubramania Naicker v. Knshnammal (1895) 18 Mad., 287.

(c) Hiranath Koer v. Baboo Ram Narayan Singh (1872) 9 Beng.

L. R., 274; Chinatamun Singh v. Nowenkho Kumvari (1875) 2 LA., 263,
1 Cal., 153; Katama Natchair v. The Rajah of Sivaganga (1863) 9

M. I.A., 539, 543; Ramnundun Singh v. Janki Koer (1902) 29 I.A., 178,
29 Cal.. 828.

(d) Ibid., Tara Kuman v. Chaturbrij Narayan Singh (1915) 42
I.A., 192, 42 Cal., 1179; Yenumala v. Yenumala (1870) 6 M.H.C., 93;
Vlagalum Perumal v. Subbalakshmi (1936) 71 M.L.J., 1; Visvanatha-
swami V. Kamulu (1915) M.W.N., 968,

(e) Katama Natchiar v. The Rajah of Sivaganga (1863 ) 9 M.IA.*
539, 543.

PARAS. 719-720.] SEPARATION IN INTEREST.

859

and the mother (/) have been recognised in preference to
those of collaterals. Where there are more widows than one,
the senior will take before the junior (g). The daughters
succeed according to seniority, and on the death of the elder,
the younger will succeed although the elder leaves a son
surviving her (h). On the death of all the daughters, the
eldest among the daughter’s sons, irrespective of the rank
of his mother, will take the estate (i). It must be remembered
that a woman succeeding to the estate of a male takes a
limited estate, and at her death the estate descends not to
her heir, but to the next heir or heirs of the last male holder.

As in the case of partible property, each male owner becomes
a fresh root of descent.

§ 720. In order to establish that an ancestral impartible Proof of
estate has ceased to be joint family property for the purpose separation,
of succession, it is necessary to prove an intention, express
or implied, on the part of the junior members of the familv
to renounce their right of succession to the estate. It is not
sufficient to show a separation merely in food and worship (/) .

Nor will the grant and acceptance of certain villages as for
maintenance of a junior branch of the family in perpetuity
determine the joint family character of the impartible estate
(y^). Of course, the Zamindar for the time being cannot by a
unilateral declaration make the estate his own separate estate.

But it is competent to any other member of the family to
sever in interest by a unilateral declaration even where the
estate is impartible. Such a declaration must however in
eflFect be a renunciation (A). Short of renunciation
by the junior members of the family, it is extremely

(/) Annapurni Nachiar v. Collector of Tinnevelly (1895) 18 Mad.,

277; un appeal, Annapurni Nachiar v. Forbes (1900) 26 I.A., 246, 23
Mad., 1. Thi<^ case established the rule that the adopting mother
succeeds m preference to a co-widow who did not take part in the
ceremony of adoption.

(g) Katama Natchiar v. Dorasinga (1871) 6 M.H.C.R., 310.

(A) Katama Natchiar v. The Rajah of Sivaganga (1863) 9 M.I.A.,

539, 543.

(i) Muthu Vaduganadha Tevar v. Dorasinga Tevar (1881) 8 I.A.,

•99, 3 Mad., 290; Muttu Vaduganadha Tevar v. Periasami Tevar (1896)

23 I.A., 128, 19 Mad., 451, affg. (1893) 16 Mad., 11.

• (/) Konammal v. Annadana (1927) 55 I.A., 114, 51 Mad., 189;

Shibaprasad v. Prayag Kumari (1932) 59 I. A., 331, 59 Cal., 1399;

Collector of Gorakhpur v. Ram Sundar Mol (1934) 61 I. A., 286, 56
All., 468; Chuni Lai v. Jai Gopal (1936) 17 Lah.. 378; Vijaya-
nanda y»Commissioner of Income-tax (1934) 56 AIL, 1009.

(/i) Lakshmi Devi v. Suryanarayana (1897) 24 I. A., 118, 20 Mad.,

256.

(A) Jagadamba Kumari v. Narain Singh (1922) 50 I.A., 1, 2
Pat., 319; see cases in (;).

860

IMPARTIBLE ESTATES.

Maintenance.

[chap. XlXy.

difficult to prove a division. The only other way
would be that though the Raj or zamindari is itself
indivisible, it may be taken into a division as property
allotted to a separate member (A;^). Partition of all other
property does not put an end to the undivided status in<
respect of the impartible estate (Z).

As in the case of partible property, a renunciation by the-
owner or a junior member of the family will leave the
impartible estate the joint property of the other members
of the family. Accordingly when the eldest of three brothers
transferred his interest in an impartible zamin to the two
younger brothers, it was held that as between the descendants
of the grantor and the son of the surviving grantee, the zamin
was the separate property of the latter and that on his death,
his rights passed to his widow. In other words, that which
was the joint estate of three became the joint estate of
two (m). So too when the owner of an impartible estate
alienates it in favour of one of the members of the family, as
he is entitled to do, it will become the self-acquired property
of the alienee whose separate heirs will succeed to it
on his death, in default of his own male issue. None of his
collaterals in the original coparcenary will succeed by
survivorship to the exclusion of his widow, daughter or
daughter’s son (m^).

§ 721. The rights to maintenance of junior members of
a family holding an impartible estate to maintenance cannot
be regarded as finally settled. In the second Pittapur case,
it was observed by Lord Dunedin that apart from custom
and relationship to the holder, the junior members of
the family Jiave no right to maintenance out of it; and it
was suggested that no one below the first generation from
the last Raja can claim maintenance as of right (n). But the
case Itself rested on the central assumption that an impartible
estate cannot be joint family property and that the other
members of the family have no sort of right in it. The

(A,i) Runganayakamma v. Ramayya R.A. 28 of 1877, 5 C L.R , 439*

P.C.

(Z) Yarlagadda Mallikarjuna v. Yarlagadda Durga (1901) 27 LA,
151, 24 Mad , 147 ; Saheb Gouda v. Basangouda A l.R. 1931 Bom.,
378.

(m) Periasami v. Periasami (1878) 5 LA , 61, 1 Mad , 312.

(ml) (1936) 71 MLJ, 1 supra,

in) Rama Rao v. Raja of Pittapur (1918) 45 I A , 148, 41 Mad.,
778, (1927) 54 I A, 289, 54 Cal., 955 supra. Before the former deci-
sion, invariably the rights of junior members to maintenance, whatever
their relationship to the holder, were recognised in practice as well
as by decisions of courts as a rule of Hindu law.

PARA. 721.] MAINTENANCE OF JUNIOR MEMBERS.

861

decision cannot be regarded except as one upon the actual
facts of that case, now that its basis that there can be no
coparcenary in an impartible estate has itself disappeared.
Beferring to it, Lord Dunedin himself pointed out
in Baijnath Prasad Singh v. Tej Bali Prasad Singh^
that the claim for maintenance was made not against
the head of the family but against a donee who was treated
by the claimant as altogether a stranger to the family and
that the right to maintenance had not matured into a charge
before the estate had got into the hands of the donee (o).
In the latest case, Collector of Gorakhpur v. Ram Sundar
Mai (p) , the Privy Council have clearly laid down that the
earlier judgments of the Board such as the Challapalli
case {q) which regarded the right to maintenance of junior
members, however limited, out of an impartible estate as being
based on the joint ownership of the junior members of the
family, should be followed.

Apart from custom or statute, the right of junior members
to maintenance would seem to be co-extensive with their right
of survivorship. As was pointed out by the Madras High
Court in Naraganti v. V enkatachalapathy (r) which has often
been approved by the Privy Council, “where from the
nature of property, possession is left with one coparcener,
the others are not divested of co-ownership. Their necessary
exclusion from possession imposes on the co-owner two
obligations to his coparceners in virtue of their co-ownership,
the obligation to provide them with maintenance and the
obligation to preserve the corpus of the estate”. The latter

(o) (1926) 48 I.A., 195, 211, 43 All., 228; see also (1932) 59
I.A., 331. 59 Cal. 1399.

ip) (1934) 61 I.A., 286, 56 All., 468 See also Vijayananda v.
Commissioner of Income-tax (1934) 56 All, 1009; Commissioner of
Income-tax v. Zamindar of Chemudu (1934) 57 Mad., 1023 F.B.;
Subbayya v. Marudappa [1937] Mad,, 42; Ram Chandra v. Sukhdeo
AIR. 1935 Nag., 133 (the right of junior member to receive main-
tenance is not attachable in execution).

{q) The Challapalli case, Yarlagadda Mallikarjuna v. Yarlagadda
Durga Prasada (1900) 27 LA., 151, 24 Mad, 147.

(r) (1881) 4 Mad., 250; in the U dayarpalayam case (1901) 24
Mad., 562, the plaintiff who was the son of the zamindar’s grandfather's
brother was held entitled to maintenance. See also Chuoturya v. Sahub
Purhulad (1857) 7 M.I.A., 18; Naragunty v. Vengama (1861) 9 M.I.A.,
66; Muttusawmy v. Vencataswara (1868) 12 M.I.A., 203 (illegitimate
son) ; Katchekalyana v. Kachivijaya, ib., 495. The case of the Pachet
Raj where it was held that there was no law, or custom, which entitled
anyone but a son or daughter of the deceased Rajah to receive
maintenance; Nilmony Singh v. Hingoo (1880) 5 Cal., 256 is incon-
sistent with the Naraganti case, Baijnath*s case and Collector of
iGorakhpur v. Ram Sundar Mai,

862

IMPARTIBLE ESTATES.

[chap. XIX.

right no longer exists by virtue of the decisions. There is
no reason why the former obligation to maintain them, by
reason of their interest such as it is in the joint estate, should
be denied; for the general law must prevail except to the
extent to which the custom of impartibility and primogeniture
affect It. The right to maintenance can certainly co-exist
with impartibility as m the case of Malabai Kovilagams and
Tarwads. The right to maintenance founded upon the right
of coparcenary begins where coparcenary begins and ceases
where coparcenary ceases ( 5 ).

The other ground on which the right to maintenance
rests will equally apply. It is settled that the law allows
maintenance to those members of a joint family who are
excluded from inheritance and from a share on paitition {t) ,
Accordingly in addition to the junior members, the widows
of the undivided members of the family as well as the other
members who are excluded from inheritance and a share on
partition by the impartible character of the propeity are
entitled to be maintained out of its income So also the un-
married daughters of a proprietor are entitled to be mairied
and to be maintained till marriage. But where the impaitible
estate is the self-acquired or separate property of the owner,
his adult son is not entitled to maintenance as against that
properly (w).

§ 721 A. Section 9 of the Madras Impartible Estates
Act, 1904, recognising the rights of junior members to main-
tenance based upon joint ownership makes a specific provision
as to the persons entitled to maintenance out of an impartible
estate and its income, where the estate has to be regarded as
the property vof a joint family for purposes of succession.
Such persons are the son, grandson and great-grandson of
the proprietor of the estate or of any previous proprietor as
well as their childless widows, the widow of any previous
proprietor, and the unmarried daughter of the proprietor or
of any previous proprietor as well as of a son 01 grandson
of the proprietor or of any previous proprietor, where she
has neither father, mother nor brother.

(s) Commissioner of Income-tax v, Zamindar of Chemudii (1934)
57 Mad , 1023, 1025 F B per Ramesam, J., citing Lord Dunedin’s
observation in the second Pittapur case.

(t) Vellayappa v. Nataraja (1931) 58 I.A., 402, 414, 55 Mad, 1..

(u) Subbayya v. Marudappa [1937] Mad., 42.

CHAPTER XX.

GIFTS.

§ 722. The early law of gifts is stated by Sanskrit Early law
writers under the title “ResiAnption of gifts”, one of the of gifts,
eighteen titles of law. Narada says, “An anvahita deposit (a) ,
a yachita, a pledge, joint property, a deposit, a son, a wife,
the whole property of one who has offspring, and what has
been promised to another man; these have been declared by
the spiritual guides to be inalienable by one in the worst
plight even. What is left (of the property) after the expense
of maintaining the family has been defrayed, may be given.

But by giving away anything besides, a householder will
incur censure” (b) . According to Brihaspati, “Self -acquired
property may be given away at pleasure by its owner” (c).

In other countries gifts try to clothe themselves with the
semblance of a sale. Under Hindu law, sales claimed pro-
tection by assuming the appearance of a gift. The Mitak-
shara says: “Since donation is praised, if sale must be made,
it should be conducted, for the transfer of immovable
property, in the form of a gift, delivering with it gold and
water (to ratify the donation) ” (d) . Narada mentions
sixteen kinds of invalid gifts which embrace a variety of
circumstances such as want of capacity of the donor, either
permanent or temporary, absence of real intention to make
a gift, influence of fear, fraud, misrepresentation, or
mistake, many of which would invalidate a gift m modern
law (e) .

§ 723. Where property is absolutely at the disposal of Property that
its owner, he may give it away as freely as he, may sell or “ay be gifted,
mortgage it, subject to a certain extent to the claims of those
who are entitled to be maintained by him {f) . For instance,

(a) ^'‘Anvahita is a deposit, which has been delivered by the
depositor to a third person, on condition of its being returned after-
wards to the owner. Yachita is what has been borrowed for use,
especially clothes and ornaments, as on the occasion of a wedding or
other festival”, Narada, II, 14, note, S.B.E., Vol. XXXIII, p. 123.

ib) Naiada, IV, 4-6; Yaj., II, 175.

(c) Brih., XV, 2, 3, 5, S.B.E., Vol., XXXIII, p. 342.
id) Mit., I, 132; Dayatattva, V, 25.

(e) Narada., IV, 9-12; Forman Ah v. IJzur Ah (1937) 42 C.W.N.,
14, 16.

(/) As to what property is at one’s disposal, see §§ 352-354. As to
the restrictions for maintenance, see sections 39 and 128 of the T. P.
Act and §698.

S64

GIFTS.

[chap. XX,

Definition
of gift.

a father under the Dayabhaga law may make a gift of his
property and a coparcener of his share. A Hindu, whether
governed by the Mitakshara or the Dayabhaga, can dispose
of his separate property. So too, a woman can make a gift
of her stridhana. A coparcener cannot make a gift of his
coparcenary interest even in provinces where he can alienate
It for value except after a* division in status (§382).

Where the property is not absolutely at the dis-
posal of a person, a transaction can only be sup-
ported on the ground of necessity and as a general rule, a

gift of it could never be valid. Exceptions however are
recognised by Hindu law where gifts can be made either for
pious, religious, or charitable purposes, or on occasions when,
according to the common notions of Hindus, gifts are usually
made. This exceptional power can only be exercised pro-
perly and within reasonable limits (g). A gift of ancestral
property by a father before adoption is binding on the
son adopted Where a gift consists of a donor’s whole

property, the donee is personally liable for the debts due
by and the liabilities of the donor at the time of the gift
to the extent of the property comprised in it (g~).

§ 724. The modern law of gifts consists in part of case
law and in part of the provisions of Chapters VII and II of
the Transfer of Property Act, 1882 (/i).

Gift IS the transfer of certain existing movable or
immovable property made voluntarily and without con-
sideration, by one person called the donor, to another called
the donee, and accepted by or on behalf of the donee. Such

(g') These Tidve already been discussed, ante §§369, 644.

(gl) §§204*205, Kamalabai v Pandurang A I.R 1938 Bom, 318
(even when the gift is made immediately before the adoption and on
the same day)

(g-) Sec 128, T P. Act, Satyanarayana v V enkatanarasimham
1937 M W N., 395, Sudhamoyee Bose v Bhujendra IMath AIR 1937
Cal, 226, Ragho Govind v Balwant (1883) 7 Bom, 101, Anrudh
Kumar v Lachhmi Chand (1928) 50 All, 818 Ante §701

ih) Chapters II and VII of the Transfer of Property Act now
apply to Hindus throughout British India except in the Punjab and
the North-West Frontier Provinces, and the Scheduled districts of
Bombay, but the principles of the Act apart from the technical rules
are applied in the Punjab as rules of justice and equity, Jhuman v.
Dubia (1923) 4 Lah , 439, Teja Singh v Kalyan Das Chet Ram (1925)
6 Lah , 487 After the amendments of the Transfer of Properly Act by
Acts XX and XXI of 1929, the Hindu Disposition of Property Act, XV
of 1916, the Hindu Transfers and Bequests Act, Madras Act I of 1914,
and the Hindu Transfers and Bequests (City of Madras) Act VIII of
1921 are, as to transfers after the 1st day of April, 1930, in effect
replaced by Chapter II of the Transfer of Property Act, 1882, where
jt IS in force.

PARAS. 724-725.] ACCEPTANCE ESSENTIAL.

865

acceptance must be made during the lifetime of the donor,
and while he is still capable of giving. If the donee dies
before acceptance, the gift is void (f). A gift of immovable
property can only be effected by a registered instrument
signed by or on behalf of the donor, and attested by at least
two witnesses. A gift of movable propeity may be made
either by a registered instrument signed as aforesaid or by
delivery which may be made in the same way as goods sold
may be delivered (y).

A gift of a mortgage interest in immovable property has
been held to be a gift of immovable property so as to attract
its requirements (A) ; but gifts of debts secured by mortgages
can be validly made apart from the security (A;^) . Gifts of
actionable claims can be made only by the execution of an
instrument in writing signed by the transferor or his
authorised agent (P). A gift of the income of a property is,
in the absence of an indication to the contrary, a gift of the
corpus (§767). A gift comprising both existing and future
property is void as to the latter, as, of course, it cannot take
effect as a contract (h?).

§ 725. Where the Transfer of Property Act is not in
force, a gift may be made orally or in writing, since writing
is not necessary under Hindu law for the validity of any
transaction (/). Apart from the Transfer of Property Act,
it has generally been held that under Hindu law delivery of
possession is essential to complete a gift even though it is by
a registered instrument (Z^). It would be more correct to say
that according to Hindu law, acceptance by the donee is
essential to the validity of a gift and delivery oi taking of

(i) Transfer of Property Act, sec. 122. As to what may not be
transferred, see S. 6, T. P. Act.

(;) Sec. 123.

(A) Perumal Animal v. Perumal Naicker (1921) 44 Mad., 196.

(A^) Imperial Bank of India v. Bengal National Bank (1931) 58
I.A., 323, 59 Cal., 377 reversing (1930) 58 Cal., 136.

(A2) Sec. 130 of the T. P. Act.

(A2) Sec. 124 of the T. P. Act.

(/) Hurpurshad v. Sheo Dayal (1876) 3 I.A., 259; Balaram v. Appa
(1872) 9 Bom.H.C., 121.

(/l) Harjivan v. Naran Hanbai (1867) 4 Bom.H.C. (AC.J), 31;
Vasudev v. Narayan (1883) 7 Bom., 131; Abaji Gangadhur v. Mukta
(1894) 18 Bom., 688; Gordhandas v. Bai Mancoover (1902) 26 Bom.,
449, 472; V enkatachella v. Thathammal (1869) 4 Mad. H.C., 460;
Ramamirtha v. Gopala (1894) 19 Mad., 433; Dagai v. Molhura (1883)
9 Cal.| 854; Chandrabhaga v. Anandrav A.I.R. 1938 Nag., 142.

57

Under
Hindu law.

Acceptance

only

necessary.

866

GIFTS.

tcH.\P. XX,

May be
express or
implied.

possession is but one of the inodes of acceptance (/n) . Tt
IS, howevei sufficient if the c*hange ol possesjjion ib such as
the nature of the case admits of (n). Where the donor is
out of possession and has done everything in his power to
complete the jrift, the fact that jiossession has not been ^iven
is no answei to a suit liy ihe donc'e against the obstructing
paity (o). It is now settled that sec 123 of the Tiansfei of
Property Act has superseded the lule of Hindu law, if anv,
that delivery of possession is alisolutcly essential foi the
completion of a gift (p).

§ 726. Acceptance of a gift lequiied by sec. 122 of the
Transfer ol Property Act nia\ bi' either cx])iess oi im-
plied (cy) On delneiy of the deed of gift to the donee, even
before legistiation theie is an acceptance ol the gilt and it is
not open to the donoi to levoke the gilt alter its acceptance
and befoie its legistiation. INoi does the death of the
donoi after acceptance and befoic legisliation allcct the

(///) Dhannodas Das v Nistarini Dasi (1887) 4 Cdl , 446, Lahsh-
inoni, V. ISLthyananda (1893) 20 (^al , 464 The Mitakshara ‘^ay&, “Gift
consists 111 the lelinquishmc lit of one's own right, and the cieation
of the right of another, and the cieation of another man's right is
completed on that other’s acceptance of the gift, but not otherwrse.
Acceptance is made by three means, mental verbal oi corporeal
Mental acceptance is the determination to appropriate, verbal accept-
ance IS the utterance ol the expression, ‘this is mine or the like’,
corporeal acceptance is manifold, as by touching”. “In the case of
land, as there can be no corporeal acceptance without enjoyment of
the produce, it must be accompanied by some little possession, other-
wise the gift, sale, or other transfer is not complete’'. Mit , III, 5-6
translated by Mr William MacNaghten, 1 W MacN , 212, 217

(/i) Bank of Hindustan v Premchand (1868) 5 Bom. H.C (O.C.J.),
83; Krishnanamani \ Ananda (1870) 4 BLR. (O.CJ), 291, Man
Bhan v. Naunidh (1882) 4 All, 40, 45, Bai Kiishal v Lakhma (1883)
7 Bom, 452,^ Wannathau v Keyakadath (1871) 6 M H C R., 194;
Kallyani v. Narayana (1886) 9 Mad, 267, Chellamnia v. Subamrna
(1884) 7 Mad., 23 (gift of a nibandha or corrody) , Khursadji v.
PestonjL (1888) 12 Bom., 573 (gift of Govt. Promissory notes).

(o) Kalidas v Kanhaya LalL (1884) 11 I A , 218, 11 Cal., 121 fol-
lowed in cases under Mahomedan law, Mahomed Biiksh v. Hosseini
Bibi (1888) 15 I A., 81, 15 Cal, 684, Sheikh Miihumed v. Zuabida
Jan (1889) 16 1 A 205, 11 All, 460 Balmukund v Bhagwan Das
(1894) 16 All, 185, Bhaskar v. Saraswatibai (1892) 17 Bom, 486,
Rajarani v Ganesh (1899) 23 Bom., 131, Joitarani v Ramknshna
(1903) 27 Bom, 31, Nabadiveepachandra Das v Lohenath Ray (1932)
59 Cal., 1176, 1181, U, Pandwun v. U Sandima (1924) 2 Rang., 131,
Bhagwan Das v Gian Chand A.I R, 1936 Lah., 49.

(p) Phulchand v Lakkhu (1903) 25 All, 358, Lallu Singh v. Gur
Narain (1923) 45 All, 115 FB, Madhab Rav v. Kashibai (1910)
34 Bom., 287; Dharnwdas v. Nistarim Dasi (1887) 14 Cal., 446;
Balbhadra v. Bhowani (1907) 34 Cal., 853, Deosaran Bharthi v. Devki
Bharthi (1924) 3 Pat., 842.

iq) Anandi Devi v. Mohun Lai (1932) 54 AIL, 534.

PARA& 726-728.] DONATIO MORTIS CAUSA.

867

validity of the gift (r). A deed of gfft executed in accord-
ance with section 123, but never communicated to the
intended donee and remaining in the possession of the grantor,
undelivered, can of course be revoked ( 5 ). A donee can
take nothing under an onerous gift unless he accepts it
fully ( 5 I).

§ 727. According to Hindu law, a donatio mortis causa
(void if the donor should recovei from his illness or sur-
vive the donee) is valid. As regards the legal requisites of
such gifts, the Hindu law makes no distinction between those
made in contemplation of death and other gifts (/). Accord-
ingly, as section 129 of the Transfer of Properly Act, 1882
excludes from the provisions of the chapter relating to gifts,
gifts of movable property made in contemplation of death, the
legal requisites are a giving, either orally or by writing, with
the intention to pass the property in the thing given, accom-
panied by its actual delivery and acceptance in the donoi’s
lifetime (u),

S 728. A minor or a lunatic cannot make any disposition
of piopeity by way of gift or settlement (i;) . But
neither Hindu law nor sec. 122 of the Act prohibits a gift
in favour of a person not competent to contract such as a
minor or a lunatic. In either case, his guardian can accept
the gift for him (w), A donee not competent to contract, on
whose behalf a gift is accepted, is not bound by the accept-
ance where the gift is burdened with an obligation. But if
after becoming competent to contract and being aware of the

(r) Kalyanasundaram v. Kaiuppa (1927) 54 I.A., 89, 50 Mad., 193,
approving Atmaram Sakharam v. Vaman Janardhan (W25 ) 49 Bom.,
388 F.B. and Venkati Rama v. Pillatti Rama (1917) 40 Mad., 204 F.B.;
Venkatasubba v. Subba Ram (1928) 52 Bom., 313 (P.C.) ; Kamalabai
V. Pandurang A I.R. 1938 Bom., 318; Kasturchand v. Mt. Wazir A.I.R.
1937 Nag., 1.

( 5 ) (1927) 54 I.A., 89, 94. 50 Mad.. 193 supra.

(si) Sec. 127, Transfer of Property Act.

(^) Kumara Upendra Krishna v. Nabin Krishna (1869) 3 B.L.R.,
113; Visalatchmi v. Subbu Pillai (1871) 6 M.H.C.R., 270; Bhaskar
v. Bai Sarasvatibai (1893) 17 Bom., 486, 495; Sat Narain v. Krishna
Dutt A.I.R. 1925 Oudh, 383. See sec. 191, Succession Act.

iu) (1871) 6 M.H.C.R., 270 supra.

(v) Bai Gulab v. Thakorelal (1912) 36 Bom., 622; Krishnama-
chariar v. Krishnamachariar (1914) 38 Mad., 166; Hardwari Lai v.
Gomi (1911) 33 All., 525. Compare sec. 126 of the T. P. Act.

{w) Subramania Ayyar v. Sithalakshmi (1896 ) 20 Mad., 147;
Joitaram v. Rani Krishna (1902) 27 Bom., 31, 40; Raghava Chariar v.
Srinivasa (1917) 40 Mad., 308, 318; Munm Kunwar v. Madan Gopal
(1916) 38 All., 62.

Donatio
mortis causa.

Gifts may
be made to
a minor or
lunatic.

868

GIFTS.

[chap. XX,

Imperfect

gifts.

obligation, he retains the piopcrty given he becomes so
bound (a^). But where a minor donee dies befoic he attains
majority, his repudiation becomes impossible (y) .

§ 729. An agreement to make a gift cannot be enforced
unless it is in writing registeied and is made on account of
natural love and affection to a near lelalion (z). Where a gift
intended to take effect bv way of tiansfer is not completed,
it will not be construed as a declaration of tiust as there is no
equity to perfect an imperfect gift (z^) To complete a gift
there must be a tiansfei of the apparent evidences of owner-
ship from the donor to the donee. “Every step taken
lowaids pi oof of gift IS in itself pro tanto a negation of a
tiust, for a trust letains the actual ownership in the trustee,
while an endeavour to make a gift is an endeavoui to divest
the property and pass it aw^ay to the donee” (a). Of course,
the donoi may constitute himself a trustee for the donee.

S 730 Prior to 1914-10, the lule of Hindu law
was that the donee must be a person in existence
at the date of the gift (6). An infant in the womb is, foi the

(r) Sec. 127, T. P. Acl

(y) (1896) 20 Mad. 147, 160 supta

( 2 ) The Indian Contract Act, S 25. A promise to make a gift of
property on condition that the donee should reside with the donoi,
when the condition is performed, becomes a complete and enforccabh*
contiatt. Lahshmi 1 enhayanima v \ enhala Narasonha (1916) 4 3

lA, 1,38, 59 Mad, 509 as cxplaimd in 4nff v Jadunath (1951) 58
1 A , 91. 104, 58 Cal . 1255

( 2 I) Amarendra Krishna \ Monuniinjai y (1921) 48 Cal., 986, fol-
lowing Milroy V Lord (1862) 4 Deg F & J , 261, 45 E R, 1185, and
Richards v. Delbndge (1874) LR, 18, Eej , 13, V enkatachella v.
Thathamma (^869) 4 MHC, 460, Huabai v Jan Mahomed (1883)
7 Bom, 229, Bhaskar Purshotam v Sarasvatibai (1893) 17 Bom, 486
(where it was, held that a dying man constituted himself a trustee),
Gordhandas v. Bai Mancoover (1902) 26 Bom., 449, 472, Natha Gulab
V. Shatter A.I.R. 1924 Bom , 88, 25 Bom L R , 599

(fl) llariram v. Madan Gopul (1928) 55 CWN, 195, 497, 57
MLJ, 581 P.C , Muhammad Hussein \ Aishobai A I.R. 1935 Bom.,
84, 36 Bom. L.R., 1155, Venkataramay mi v. Hagamma A.I R. 1952
Mad, 272

(b) This IS ih(’ ddual time of giving, that is the dale of the gift,
if inter vivos, or the death of the testator, if by will, not the possible
time of receiving, if a settlement by way of remaiiidci, the date of
the settlement See Tagore v Tagore (1872) 9 BLR, 599, 1 A. Supp.
Vol. 47, 67; Soudarniney v, Jogesh (1877) 2 Cal, 262; Kherodemoney
Doorkamoney (1879) 4 Cal , 455, Bai Maniibai v Dossa Morarji (1893)
15 Bom., 443; Ranganatha v Bhagirathi (1906) 29 Mad, 412. In the
Mitak^hara system this would hardly be a correct rule of Hindu
law. For, the very conception of right by birth involves the idea
that a person not in existence at the dale of the grandfather’s death
becomes entitled to his properly at his birth and that equally with his
father. A text of Vyasa cited in Mit., I, 1 , 27 “they who are born, they
who are yet unbegotten, and they who are still in the womb” places
lives not in being on the same footing as children born or in the womb.

PARAS. 730-731.] RULE AGAINST PERPETUITIES.

869

purpose of this rule, in contemplation of law, a person in

existence (c). This rule of Hindu law is now abrogated Gift to

by the Madras Act known as the Hindu Transfers and Bequests

Act I of 1914, and the India Acts, the Hindu Disposition of

Property Act XV of 1916, and the Hindu Transfers and Law altered.

Bequests (City of Madras) Act VIII of 1921, and is replaced

by the provisions of those » Acts which are in effect the

same as the provisions contained in Chapter II of the

Transfer of Propeity Act, 1882. While the Hindu

Disposition of Pioperly Act, 1916 is not retrospective,

the Madras Ac I I of 1914 applies also to gifts oi settlements

executed l)efore its commencement in lespecl also of such

dispositions therein contained as would come into operation

subsequent to the Act. Except as to what propeity a

man can give away, the Hindu law of gifts has to a gieat

extent ceased to he peisonal law and has become pait of

the geneial law of the land. And as the principles common

to gifts and wills aie moie fully discussed in the next chaptei,

a 1)1 ief statement is suflicienl heie.

S 731. A gift inter vivos to a person not in existence
can therefoie be made, subject to the limitations and provi- against
sions contained in Chapter II of the Transfer of Property perpeiuine«.
Act (d). Accordingly, a gift to an unborn person which
is subject to a pnor gift must be of the whole of the remain-
ing interest of the donor in the property (e). Where a gift
IS made to A for his life and after his death, to A’s son for
life and aftei the death of the latter to B and where A’s son
was not in existence at the date of the gift, the gift to A’s
son fails because it does not comprise the whole of the interest
that remains to the donor (e^). The rule against perpetuities
is stated in section 14 of the Transfer of Propeity Act and a
gift in favour of an unborn person can be valid if it is made
within the limits allowed by that rule. No gift can be made
to take effect after the lifetime of one or more persons living
at the date of the gift and the minority of the donee who
shall be in existence at their death.

(f) Tagore v Tagore (1870) 9 B.L R., 377, 397, 400, 404, LA.
Supp. Yol. 47. 67.

id) Act I of 1914, <^erlions 3 and 4; Act XV of 1916, sections 2
and 3: Act VllT of 1921, wlions 3 and 4.

(e) T. P. Act, sec. 13.

(el) Cf. illustration (i) to S. 113 of the Indian Succession Act.
Kuppusami v. Jayalakshmi (1935) 58 Mad., 15 (will), Girjesh Datt v.
Datain 9 Luck., 329, A.T.R. 1934 Oudh, 35, 39 F.B. (gift inter vivos).

870

GIFTS.

[chap. XX,

Gift to
a class.

Heritable

annuity.

A gift in favour of a class of persons as to some
of whom the gift is void for remoteness is nevertheless valid
as to those who are capable of taking under the gift (/). A
gift to take effect after a prior interest which is void as con-
trary to sections 13 and 14 of the Transfer of Property Act
also fails fg).

§ 732. A gift of an annuity to a man and his heirs
can be validly made in Hindu law at least where it is charged
upon immovable property or its income. In Raja of Ramnad
v. Sundarapandiya it was held that the grant of an annuity in
perpetuity out of the income of a zamindari created a charge
upon the estate, not contravening the rule against perpetuities
and that it did not lie in covenant only (g^). According to
Hindu law, a nibandha or corrody (T will give 150 suvarnas
every month of Kartigai’) is valid (g“). Muttuswami Iyer, J.,
pointed out in Chalamanna v Subharnma, that a solemn and
binding piomise in this foim, equivalent to a declaration of
tiust, was not unknown to Hindu law and Mookerjee, J.,
has also adopted that view (g*).

(/) Transfer of Properly Act, sec 15, this departs from the rule
of English law \Leake v Robinson (1817) 2 Mer , 363, PearKs v.
Moscly (1880) 5 App Cas , 7141 and follows Rai Bishen ('hand v
Mt. Asmaida Koer (1884) 11 I A , 64, 6 All, 560, Rain Lall Sett v.
Kanai Lai Sett (1886) 12 Cal, 663, Bhoba Tarim v. Peary Lai (1898)
21 (al, 646, 658, Bhagabati v Kali Chaian (1911) 38 I A , 54, 38
Cal, 468, dffg (1905) 32 Cal, 992, Rammorii Dassi v Radha Prosad
(1914) 41 I A , 176, 41 Cal , 1007, Manjamnia v Padnianabhavya
(1889) 12 Mad, 393, Ranganadha v Bhagirathi (1906) 29 Alad , 412,
Mangaldas v Tribhuvandas (1891) 15 Bom, 652, Tribhiivandas v.
Gangadas (1894) 18 Bom, 7, Krishna Rao v Benabai (1896) 20
Bom, 571, Khimji v Morarji (1898) 22 Bom, 533, Gordhandas v
Bai Mane cover ^1902) 26 Bom, 449, 469 The decision of Stanley, J,
m Rajemovee \ Troyluhho (1902) 29 Cal, 260, 276 is not good law.
The decision in ^Sew day al v. Official Trustee (1931) 58 Cal, 768 was
due to a mi'^conception It is not law after the amendment of sec 15
of the Transfer of Properly Act Even before it, sec 14 of the Act
only, but not sec 15, was applicable to Hindu gifts, see the Hindu Dis-
position of Property Act, 1916 And the principle of sec. 15 had been
rejected liy a strong current of authority

(g) Sec 16 of the T P Act

(/?i) (1919) 46 I A, 64, 42 Mad, 581, affg 27 M.L.J., 684 in
which Wallis, C J , expressed an opinion that even if it was not a
charge and only in the nature of a personal estate, it would be valid
(p 703) , Narayana Ananga v Madhava Deo (1893) 20 I.A., 9, 16
Mad, 268, see also the Tagore case (1872) I A Supp. Vol. 47, 75;
Jatindra v Ghanashyam (1923) 50 Cal., 266, Matlub Hasan v. Kalawati
A I R 1933 All.. 934.

(g2) Dipakalika cited Dig, I, 443.

(g3) (1883) 7 Mad., 23.

(g^) (1923) 50 Cal., 266 supra.

PARAS. 732-733.] ESTATES REPUGNANT TO HINDU LAW.

871

The rule against perpetuities applies to covenants to grant
in futuro interests in land and to conditional grants of future
interests in property (g®). But this rule now can apply sub-
ject to the alteration that an interest can be given to an
unborn person within the limits of the rule against perpetuity.
Contracts which do not create an interest in land do not
offend the rule against perpefr,uities, but on the application of
this rule to particular contracts relating to immovable pro-
perty, conflicting opinions have been expressed fg®).

§ 733. So also a gift will be invalid which creates any
estate unknown to, or forbidden by, Hindu law as for
instance, an estate to heirs male or to male des-
cendants 01 an estate descendible only to aurasa
descendants excluding adopted sons ih). Provisions which
are repugnant to the nature of the grant or transfer,
such as a condition absolutely restraining the donee from
alienating it (i) or from partitioning it, are also invalid (y).
Partial restrictions on alienations or partitions will however
be valid (A:). A gift to \\liich an immoial condition is attached

(g'O Chandi Churn Bariia v. Sidhesuari (1888) 15 I A., 149, 16
Cal, 71, Maharaj Bahadur Singh v. Balchand (1920 ) 48 1 A., 376,
25 C.W N . 770

(^<^) Dinharrao v Narayan (1923) 47 Bom., 191; Harkishan-

da% V. Bai Dhanu (1926) 50 Bom, 566, 599; Alibhai v. Dada
A.I.R 1931 Bom,, 578, 33 Bom. L K., 12%, Munustvamt v. Sagalagiina
(1926) 49 Mad., 387, Rama Rao v Thimmappu (1925 ) 48 M.L.J.,
463, Nafar Chandi a v Kailash Chandra (1920) 25 C.W N , 201;
Kalathand Muhherp v. Jatindra Mohun (1929) ,56 Cal., 487, Basdeo
V Jhagru (1924) 46 All, 333, Auhtd Ah > Ah Athar (1927) 49
All., 527 FB., Afatura Subba Rao v. Siirendranath (1929) 8 Pat, 243.

(h) Tagore v. Tagore (1872) I.A Sop Vol 47, 9 Ben L.R , 377;
Suriya Rao v. Raja of Pittapur (1886) 13 T A., 97, 9 Mad., 499.

(/) Transfer <)f Properly Art, secs. 10 and 11, Raghunatha Prasad
V. Deputy Commissioner, Partabgarh (1929) ,56 I A.,* 372, 34 C.W N ,
61, 58 M.L J , 1; Venhataramanna v. Brammanna (1869) 4 M H.C.. 345;
Amiruddaula v. Nateri (1871) 6 M.H.C., 356, Anantha v. Nagamuthii
(1882) 4 Mad, 200, MuthiiKumara v. Anthony Udavar (1914) 38
Mad., 867; Gokool Nath v. Issur Lochun (1887) 14 Cal., 322; Ali
Hasan v. Dhirji (1882) 4 All., 518, Bhairo v. Parmeshn (1885) 7
All., 516; Rukmimbai v. Laxmibai (1920) 44 Bom., 304, Saraju Bala
V. Jyotirmoyce (1931) 58 I.A., 270, 35 C W.N., 903. It has been held
in Ma Yin Hu v. Ma Chit May (1929) 7 Rang., 306 that a condi-
tion, that if the donee tiaiisfers the property without the donor’s con-
sent the gift wouhl he revoked, is valid under section 126 of the
T. P Act, \ed qu Where the condition is against alienation, section
126 must he lead with sei lions 10 and 12 of llip Act.

(y) Narayanan v Kaunan (1881) 7 Mad., 315, 317.

(A) Muhammad Raza v. Abbas Bandi Bibi (1932) 59 I.A., 236,
246, 7 Luck., 257, 36 (^.W N , 774* “It seems clear that after the
passing of the Tiansfer of Properly Act in 1882, a partial restriction
upon the power of disposition would not in the case of a transfer inter
VIVOS he regarded as repugnant”.

Covenant and

conditional

grants.

Estates
repugnant to
Hindu law.

872

GIFTS,

[chap. XX,

Vesting of
interest.

Contingent

interest.

remains a good gift, while the condition is void (Z) . But if
there is an immoral consideration for a transaction which is
in form a gift, it is void and it makes no difference whether
the transaction is executed or executory (Z^).

§ 734. Where a gift is already complete, so that the
propel ty has passed from ^ the donor to the donee,
any conditions that may be subsequently added are absolutelv
void, since the person who attempts to impose them has ceased
to have any right to do so (m) . Where a gift to A for life
is followed bv a gift of the remainder of the estate to B,
if the gift to A cannot take effect, the estate of B is accelerated,
and takes effect at once (/?) It is however open to the donor
to make a gift of piopeity while icserving to himself a life
iritciest (o) .

Wlicie a gift IS made in favour of a person, his interest
111 it becomes vested at once, unless a contiary intention
appears. Neither a condition postponing the enjoyment, nor
the giant of a prior inteiest, nor a diieition to accumulate,
pi events the vesting, and where a donee whose mteiest is
vested dies before he is entitled to possession, his interest is
heritable as well as alienable (p) ,

An inteiest given to an unborn person becomes vested in
him on his birth*

A gift can be made in favour of a person so as to take
effect on the happening of specified uncertain event or if a
specified uncertain event shall not happen. In such a case,
the donee acquires only a contingent interest which becomes
a vested interest on the happening of the event in the one
case, or when it becomes impossible in the other {q), A gift
can be made in favour of a person with the condition super-
added that if a specified uncertain event happens, the interest
is to pass to another person, or that if a specified uncertain
event does not happen such interest shall pass to another

(/) Ram Sarup v Mt Bold (1884) 11 I A , 44, 6 AH, 313, Transfer
of Property Act, 1882, <5ecs. 25, 18.

(/i) Ghumna v Ramchandra (1925) 47 All, 619 following Muthn
Kannu v Shiinmugavelu (1905) 28 Mad, 413

(m) (1884) 11 I.A, 44, 6 All, 313 supra.

(n) Ajudhia Buksh v. Mt Rukmin Knar (1884) 11 I A, 1, 10
Cal, 482, follg. Lainson v. Lainson 43 ER, 1063, sec. 27, Transfer
of Property Act.

(o) Lullu Singh V Gur Narain (1923) 45 AIL, 115 F B.

ip) Transfer of Property Act IV of 1882, sec. 19.

{q) Sec. 21 of the T. P. Act.

PARAS. 734-736.]

REVOCABLE GIFTS.

873

person (^'). When a prior interest is invalid as contravening
the rule against perpetuities, the subsequent interest also
fails {q^). But of course if the ulterior disposition is not
valid the prior disposition is not affected by it (q*), A gift
can be made with the condition superadded that the interest
created shall cease to exist on the happening of an uncertain
event. Accordingly where a ^ift is made to a person and his
heirs followed by a defeasance clause that on failure of the
donee’s lineal male descendants, ihe piopeity is to i evert to
the donor and his heirs, the defeasance clause would be void
as it is to take effect on an indefinite failure of male issue.
But there can be a gift of an absolute estate defeasible on
the event of the failuie of issue living at the death of the
donee {q‘^) •

§ 735. A gift IS revocable only when there is a condition
authorising it, or on the grounds of coercion, fraud oi undne
influence (r). The grounds on which gifts were avoided under
Hindu law are not open after the amendment of iW Transfer
of Property Act making Ch Vll applicable to gifts by Hindus.
Where a gift is procured by fraud or undue influence, while a
mere volunteer cannot retain it, a purchaser for value from
the donee without notice of the fraud or undue influence
would be protected {s),

§ 736. There is no presumption of a joint tenancy in the
case of a gift to several donees. They take only as tenants
in common (i). There is no rule of Hindu law that a gift
to a female carries with it, in the absence of express words,
only a life estate or a limited estate of a Hindu woman (u).
The contrary indeed appears to be settled (§ 765).

Gi ft, when
levocable.

No presump-
tion of joint
tenancy.

Gift to
females.

(qrt) Sec 28 of the T, P. Act. Canendro Mohiin Tagore v. Rajah
Juttendro Mohun Tagore (1874) 1 I A., 387, 395

(< 72 ) Sec. 16 of the T. P. Act. •

{q^) Sec. 30 of the T. P. Act. Narsing v. M ah ahksh mamma
(1928) 55 LA.. 180, 50 AIL. 375.

iq^)Saraju Bala v. Jyotirmoyee (1931) 58 I A., 270, 59 Cal., 142,
Bhoobun Mohim v. Hurrish Chunder (1879) 5 I.A., 138, 4 Cal., 23.

(r) Ibidy Sec. 126, see Manigavn v. Narandas (1891) 15 Bom., 549.

(s) Forman Ah v. Uzir Ah (1936) 42 C.W.N., 14; Behan Lai v.
Sindubala (1918) 45 Cal, 434, 439. See sec. 89 of the Trusts Act,
1882.

(t) Jogeshwar Narain v. Ramchandra Dutt (1896) 23 I A., 37,
23 Cal., 670; Bahu Ram v Rajendra Baksh (1933) 60 I.A., 95, 8
Luck., 121.

(w) Bhaidas v. Bai Giilab (1922) 49 T.A , 1, 7, 46 Bom., 153;
Sasiman v. Shib Narayan (1922) 49 I.A., 25, 1 Pat., 305; Shalig Ram
V, Chiranjit Lai (1930) 57 I.A., 282, 11 Lah., 645; Saraju Bala v.
Jyotirmoyee (1931) 58 I.A., 270, 59 Cal., 142; Rai Bishunath v. Rani
Chandrika (1933) 60 I.A., 56, 55 AIL, 61; Mangamma v. Dorayya
[19371 Mad., 335; Narayanastvamy v. Gopalaswamy (1937 ) 46 M.L.W.,
258; Hilalsingh v. Udesingh (1937) 39 Bom. L.R., 1217.

874

GIFTS.

[chap. XX,

Tiusts in
Iljndu law.

Trll‘^t how
created

Essentials of
trust

§ 736 A. Trusts of various kinds have been recognised in
Hindu law. It is obvious that property whether movable or
immovable must for many purposes be vested more or less
absolutely in some person or persons for the benefit of other
persons (v). But as the Privy Council observed, “The
anomalous law which has grown up in England of a legal
estate which is paramount in one set of Courts, and an equitable
ownership which is paramount in Courts of Equity does not
exist in, and ought not to be introduced into Hindu law” (v) .
In Chhalra Kumari v Mohan Bikram^ their Lordships reiter-
ated that the Indian law does not recognise legal and equit-
able estates (w) , In Kerichava Ginmallappa, Loid
Phillimoie made it quite cleai that “the theory of legal and
equitable estates is no part of Hindu law and should not be
intiodured into the discussion” (\).

Apait fioni the Indian Ti lists Act, undei Hindu law, a
transfei by way of tiust ma} be made without writing (>)
Now the Indian Trusts Act, 1B82 which i elates to private
tiusts applies to Hindus as well as to others where it is in
foice (r). A trust mav be created for any lawful purpose
by any person competent to contract and, with the permis-
sion of the piincipal Civil Court, by oi on behalf of a minoi.
Every person capable of holding property may be a
beneficial) Where the Indian Trusts Act is in force, no
tiust in 1 elation to immovable piopeit\ is valid unless
declared b\ a non-testamentary instiument in wiiting signed
by the authoi of the trust or the trustee and registered, or
by the will of the author of the trust or of the trustee. No
trust m relation to movable property is valid unless declared
as aforesaid, or unless the owneiship of the propeity is
transfer led to the trustee (a)

Every person capable of holding property ma) be a trustee;
but where the trust involves the exercise of discretion, he cannot
execute it unless he is competent to contract (6) To con-
stitute a trust not only an intention to create it is necessary
but the purpose of the trust, the beneficiary, and the subject-

(i;) (1872) 1 I A. Sup Vol 47, 71, see also ebb v. Maepherson
(1904) 30 I.A., 238, 245, 31 Cal., 57.

(iv) (1931) 58 1 A, 279. 297, 10 Pat, 851, 859

(x) (1924) 51 I.A. 368, 374, 48 Bom, 569.

(y) Sec also sec 9 of the Transfer of Property Act.

(z) The Trusts Act, 1882, is now in force in the ]\Iadras Presidency,
North Western Province, the Punjab, Oudh, Central Provinces, Coorg
and Assam and the whole of the Presidency of Bombay including the
Scheduled Districts.

(а) The Trusts Act, S 5.

(б) The Trusts Act, S. 10.

PARAS. 736 a-736 b.] validity of trusts.

875

matter of the trust should be indicated with reasonable cer-
tainty; and unless the trust is declared by will or the person
who creates the trust declares himself to be the trustee, the
trust property must be transferred to the trustee (c).

§ 736 B. It is settled that as a man cannot be allowed
to do by indirect means what is forbidden to be done directly,
trusts can only be sustained to the extent and for the purpose
of giving effect to such beneficiary interests as the law
recognises. It was held in the Tagore case that after
the determination of such interests, the beneficial
interest in the residue of the property remains in the person
who, but for the gift or the bequest would lawfully be
entitled thereto (d). Accordingly a tiust cannot be created
in favour of an unborn person contrary to the rule against
perpetuities or to the rule of Hindu law that you cannot
create an estate unknown lo it, such as an estate in tail male.

The rule against perpetuity embodied in sec. 14 of the
Transfer of Property Act is expressly made inapplicable to
religious and charitable gifts by section 18 of the Act. Wheie
a trust is cieated for leligious or charitable pui poses as well
as for the benefit of one’s own relations, the invalidity of the
latter as offending the rule against perpetuity will not affect
the validity of the former. Nor conversely will the validity
of the former validate the latter. There is no rule of Hindu
law that where the dominant motive is to benefit one’s own
relations and that fails for invalidity, a trust for charitable
and religious puiposes of pait of the propeity will be in-
valid (e). Where a tiust is incapable of being executed, or
where the trust is completely executed without exhausting the
trust-propeity, the tiustee, in the absence of a d’lection to the
contiary, must hold the tiust-property, oi so much thereof
as is unexhausted, for the benefit of the author of the trust
or his legal leprescnlative (/).

(c) Sec. 3, Trusts Act. Parma Naml v. Nthal Chand (1938) 65
I. A., 252, A.I.R. 1938 P.C. 195.

{d) The Tagore case (1872) LA. Sup. Vol. 47, 72.

(e) Kayauha Pathshala v. Mt. Bhagwati Devi (1937) 64 I.A., 5,
1 1937 J AIL. 3.

(/) Sec. 83, Trusts Act.

Validity of
trusts.

Resulting

trusts.

CHAPTER XXI
WILLS.

Wills

unknown to
Hindu law.

? 737. The origin and growth of the testamentary power
among Hindus has always been a puzzle to lawyers. Wills
weie wholly unknown to Hindu law. Apparently theie was
no name foi them either in Sanskrit or in the \ernacular
languages («) Piobablv a falhei made a partition of his
self-ac quiied as well as family piopeity before he died or
befoie he enleied ihe vanapia^tha ordei. Deeds of gift were
undoubledl\ c omnion, but suih as weie intended to take
effect only on the death of the donor and levoeable dining
his lift*, do nol find a place in the elaborate eniuneialion and
dcscnption of documents given bv the vSanskiit wnteis (/>)
The KMSon ])iobably was that sentiment was sliongly against
ie\oking gifts, oiue they weie foimallv made. Wills were
(eilamlv known to Mohommedans and ( ontael with them
dining the Mohommedan inie and latei with the Western
nations was probably responsilile foi the piaclice of substitut-
ing foimal lestamentaiy instruments for the informal written
or 01 al instiuetions which must have been fioin early times,
in occasional use, foi though lestamentaiy instiuments in the
sense known to English law weie unknown, it does not neces-
sarily follow that oral oi wiillen directions by a dying man
to his heirs intended to affect their conscience in the disposal
of his property after his death were never given (c).

5 738. It has been suggested that some texts of the Hindu
sages contain the actual germ of a will. Katyayana says:
“What a man has promised, in health or m sickness, for
leligious purpose, must be given; and if he die without
giving it, his son shall doubtless be compelled to deliver it”.
And again, “After delivering what is due as a friendly gift
(promised by the father), let the remainder be divided among
the heirs.” And so Harita says: “A promise legally made in

(а) Mr Colebrooke refers to *SanhaIpa* as explained by Jagan*
nalha as ‘Signifying llie nearc'^t term for a will, and thinks that
testament was unknown to Hindu law, Dig, 11, 193 note, 2 Stra. H.L ,
418, 420, 431 The Tamil Lexicon (Madras UniverMty ) gives *marana’
sasanam' as signifying ‘the last will and te'stament,’ hut as a modern
usage (Vol. V, p 3084).

(б) Jha, 11 LS., I, Ch. IV, 96* the seven kinds of documents in
use amongst the people were documents of partition, gift, purchase,
mortgage, convention or agreement, bondage and debt; Brih., VIII;
Narada, I sqq , Arthasastra, Bk I, Ch. X.

(c) Nagalutchmee v. Gopoo Nadaraja (1856) 6 309, 344.

PARAS. 738 - 740 .] GROWTH OF TESTAMENTARY POWER.

877

words, but not performed in deed, is a debt of conscience both
in this world and the next” (d). These are inadequate data
though undoubtedly a special sanctity attached to pious gifts.
It is improbable that, when an unequal division by the father
was condemned, the law of succession was allow^ed to be
appreciably altered by testamentary dispositions.

In India, as in other countiies, the introduction of
gifts by will into general use has followed the conveyance
of property inter vivos (e) .

§ 739. The testamentary power of a Hindu was first
admitted in Bengal where the power ot dlienalion was most
exercised (e^). In 1812, the Suddei pandits laid down the
general principle, that “the same rule applies to bequests as
to gifts; every person who has aulhoiity, while in health,
to transfer property to another, possesses the same authority
of bequeathing it” (e“). It is now beyond dispute that in
Bengal a father, as regards all his propeity, and a coheir as
regards his share, may dispose of it by will as he likes, what-
ever may be its nature (e^),

§ 740. In Southern India, the tendency of the Sudder
Judges was at first to accept the opinions of Sir
Thomas Strange, Mr. Colebrooke and the pandits, that the
legality of a will must be tried by the same tests as that of a
gift; for instance, that it would be valid if made to the
prejudice of a widow, invalid if made to the picjudice of
male issue. Then, Madias Reg. V of 1829 (Hindu Wills)
w^as passed, which, reciting that wills weie instiuments
unknown, enacted that for the future Hindu wills should have
no legal force whatever, except so fai as they weie in confor-
mity with Hindu law according to authorilico prevalent in
the Madras Presidency. Wills were not only set aside wheie
they prejudiced the issue, but the Courts also feid down that

((/) Dig I, 400; T, 447, dccoitling lo Brihasjpali, gift by one
afflicted with an illness is bad XV, 9, and Naraila icfeib lo gift by
one distressed IV, 9, 10. “Disiresved,” means, “on I lie pain of an
incurable discdbc,” Dig., 1, 45d, Fat man Ah v. Uzu Ah (1937) 42
C.W.N., 14.

(c) Tagore v. Tagoic (1372) 1. A Sui>. \ul. 47, 68.

(el) See the Nuddea cabe, Eshaiuhand v. Eshorchund (1792) 1
S.D., 2; Dialchund v. Kusoiy (1793) Monlr., 371; F. MacN., 357;
Gopee V. Rajkristna (1800) Montr., 381, F. MacN., 356; Ramtoonoo
V. Ramgopal (1808) 1 Kn., 245, F. MacN., 336.

(e2) Sreena/ain v. Bhya Jha (1812) 2 S.D., 23 (29, 37) ; Juggo^
mohun v. Neerno (1831) Morion, 90.

(e*) Per Lord Kingsdown, Nagalutchmec v. Gopoo (1856) 6 M.I.A.,
309, 344; per Peacock, C.J., Tagore v. Tagore (1867) 4 B.L.R. (O.C.J.),
103, 159; pel Willes, J., Tagore v. Tagore (1872) 9 B.L.R., 396, LA.
Supp. Vol. 47..

Testamenlaiy
power in
Bengal.

In Southern
India,

87'8

WILLS.

[chap. XXI,

In Bombay.

where a man without issue bequeathed his property away
from his widow and daughteis, such a will would be absolute-
ly illegal and void, unless they had assented to it (/).

Finally the Suddei Couil by its decree in 1850 affiimed, in
accordance with the opinion of pandits, the testamentary
powei of a Hindu to dispose^ of his propeily(g). This
decision was on appeal, affiimed in 1856 by the
Judicial Committee The Pi ivy Council obseived: “The
strictness of the ancient law has long since been relaxed,
and throughout Bengal, a man who is the absolute owner of
property may now dispose of it by will as he pleases, whether
It be am estral or not . . . even in Madras it is settled that

a will of property, not ancestral, may be good” (//) After
some conflicting decisions of the Sudder Court, the Madras
High Court reviewed in 1862 all the previous decisions and
leaffiimed the powei of a testator, who has no male issue, to
make a binding will by which the bulk of his pioperly is
bequeathed to a distant i elation after pioviding sufficient
maintciidncc foi his widow (i). This decision, of course, put
an end to all discussion as to the capacity of a testator in
Madras to make a binding will.

§ 741. In Bombay, in a very early case, the pandits
when consulted said, “There is no mention of wills in our
Shastras, and therefore they ought not to be made” (y). In
1866, Weslropp, J said. “In the Supreme Court the wills of
Hindus have been always recognised, and also in the High
Court, at the original side. Whatever questions there may
formerly have been as to the right of a Hindu to make a will
relating to Ijis property in the mofussil, or as to the recogni-
tion of wills by the Hindu law, there can be no doubt that
testamentary ^writings are, as returns made within the last
few years from the Zillahs show, made in all parts of the
mofussil of this Presidency” (A;).

if) Mootoovengada v Toombayasamy Mad. Dec. of 1849, 27;
T ullapragadah v. Crovedy 2 Mad. Dec., 79; Sevacawmy v. V aneyummal
Mad. Dec. of 1850, 50.

ig) Nagalutchmee v. Nadaraja Mad. Dec. of 1851, 226, relying
on Ramtoonoo v. Ramgopal (1808) 1 Kn., 245.

ih) Nagalutchmy v. Gopoo (1856) 6 M.I.A., 309, 344.

(i) V allinayagam v. Pachche (1862) 1 Mad. H.C., 326, 339.

(/) 2 Stra. H.L., 449, Deo Baee v. fTan Baee 1 Bor., 27 (29);
Goolab V. Phool, ib , 154 (173); Gungaram v. Tappee, ib,, 372 (412);
Ichharam v. Prumanund 2 Bor., 471 (515) ; these decisions ranged
from 1806 to 1820.

ik) Narottam v. Narsandas (1866) 3 Bom.H.C. (A.CJ.)> 8.

PARAS. 741-742t] LEGISLATION RELATING TO WILLS.

879

The testamentary power of Hindus over their properly
must now be considered as completely established (/).

§ 742. Express legislation in the shape of the Hindu History of
Wills Act (XXI of 1870) followed, as it was* thought legislation,
expedient to provide rules for the execution, revocation,
interpretation and probate of^wills of Hindus, Jaiiias, Sikhs
and Buddhists in the territories subject to the Lieutenant-
Governor of Bengal and in the towns of Madras and Bombay.

By that Act, ceilain sections of the Indian Succession Act,

1865, which, of couise, was not applicable to Hindus (//i) were
made applicable to all wills and codicils made by Hindus
within the said leiiitories and limits and to wills and codicils
made outside but relating to immovable property situate within
those tciritoiies and limits. Sec. 3 of that Act provided that
nothing contained in the Act shall authoiise a testator to
bequeath property which he could not have alienated inter
vivos, or to depiivc any person of any light of maintenance
of which, but for the Act, he could not depuve them by will.

It also further provided that nothing contained in the Act
shall authorise a testator to create an interest which he could
not have created before the 1st September, 1870. Wills
made by Hindus in other parts of India continued to be
governed entirely by Hindu law unaflfected by any statutory
provision. In 1881, the Probate and Administration Act
provided for the grant of probate of wills and letters of
administration to the estates of Hindus, whether governed by
the Hindu Wills Act or not. The Succession Certificate Act
(VH of 1889) was passed to facilitate the collection of debts
on successions and to afford protection to parties paying
debts to the representatives of deceased persons. Finally,
the Indian Succession Act was passed in 1925 consolidating
the law applicable to intestate and testamentgiry succession
in British India. It superseded inter aha the India Succes-
sion Act, 1865, the Hindu Wills Act, 1870, the Probate and
Administration Act, 1881 and the Succession Certificate Act
(VII of 1889). This Act, as amended by Acts XXXVII of
1926 and XVIII and XXI of 1929, now applies, subject to
certain exceptions mentioned therein, to all wills and codicils
made by Hindus, Buddhists, Sikhs and Jainas throughout
British India {m}) .

(/) Soorjeemoney Dossey v. Denobundoo Mullick (1862) 9 M I.A.,

123, 136; Beer Pertab v. Rajendra Pertab (1867) 12 M.I.A., 1, 37-38;

Tagore v. Tagore (1872) l.A. Sup. Vol. 47, 67-68, 9 Beng. L.R., 377.

(m) See sec. 331 of the Indian Succession Act (X of 1865).

im^) Neither parts II to V relating to intestate succession nor such
provisions of part VI as arc specially excepted by sections 57 and 58
apply to Hindus, Buddhists, Sikhs and Jamas.

'6m

The Indian
Succession
Act.

Definition
of a will.

WILLS. [chap. XXl,

§ 7V6. The provisions of Part VI of the Indian Succes-
sion Act. 1925 (n) which are set out in Schedule III to that
Act. subject to the restrictions and modifications specified
therein, apply (1) to all wills and codicils made by any
Hindu, Buddhist, Sikh or Jama on or after the 1st day of
January, 1927 and (2) to all wills and codicils made by anv
Hindu, Buddhist, Sikh or Jama before that date but on or
after 1st September, 1870, within the territories and limits to
which the Hindu Wills Act applied, as well as to all such
wills and codicils made outside those territories and limits,
so fai as relates to immovable piopeity situate within those
Iciiitoiies or limits (o).

§ 711. A will IS the legal declaiation of the intention
of a teslatoi with lespect to his property which he desires to
be earned into effect after his death (/?). Every will or
codicil made by a Hindu is now required to be in writing
and attested by at least two witnesses ((j) .

in) The Indian Succession Act (XXXIX of 1925), sections 57-191.

(o) Ibid, sec 57.

ip) Ibid , sc< 2 (A). A codicil means an instrument made in
rrlalion to a will and explaining, altering or adding to its dispositions
and shall he deemed to form part of the will, sec. 2 (6) In so far
as tin provisions of a will arc intended to take effect from any date
anlcnoi to the death of the testator, it is not a will IBnjraj Singh v.
Sheodan Singh (1913) 40 I A , 161, 35 All, 337J, as for instance, if
it resLives a life estate to the testator, Pirsab Valad Kasimsab v.
Guruppa Basappa (1914) 38 Bom., 227 On the question whether a
document is te^amentaiy or not, see Jagannatha v. Kunja (1921)
48 I A , 482, 44 Mad., 733, Vijayaratnam v Sudarsana Rao (1925) 52
LA., 305, 48 Mad, 614, Krishna Rao v Sundara Siva Rao (1931)
58 1 A , 148, 54 Mad, 440, Chand Mai v Lachhmi Narain (1900) 22
All, 162, IJdai Haj v. Bhagwan Baksh (1910) 32 All, 227, Chaitanya
Gobind V. Dayal Gobind (1905) 32 Cal., 1082; Dm Tarim Debi v.
Krishna Gopal (1909) 36 (^al , 149 (matrimonial deed) ; Baisnav
Charan v Kishore Dass (1911) 15 C W.N , 1014; Subbareddi v. Dorai-
sanii (1907) 30 Mad, 369 (no technical words necessary) , Garib Shaw
V. Patia Dassi A I.R. 1938 Cal, 200, 66 CLJ , 337 (a document partly
Cl eating a trust duiing a testator’s lifetime and partly containing
testamentary dispositions) .

iq) The detailed requirements as to signature and attestation are
given in sec. 63 of the Indian Succession Act, 1925. But sec. 67
invalidating bequests to attesting witness or his wife or her husband
does not apply to Hindus Umahanta v. Biswanibhar (1929) 8 Pat,
419 The onus of establishing an oral will made before
1st January, 1927 is a very heavy one. It must be proved with
the utmost precision, and with every circumstance of lime and place,
Beer Pertab Sahee v. Rajender Pertab (1867) 12 M.I A , 1, 28, Venicat
Rao V Namdeo (1931) 58 I A, 362, 368, Mahabir Prasad v Syed
Mustafa A.I.R. 1937 P.C., 174, 41 C.W.N., 933, (1937) 2 M.L.J., 518,
Ram Gopal Lai v. Arpna Kunwar (1922) 49 I.A., 413, 44 All., 495
(onus as to signature).

PAMS. 745 - 747 .] testamentary capacity.

881

§ 745. Every person of sound mind, not being a minor,
may dispose of his property by will (r). Apart from the
Act, all the Courts have held that a Hindu who has not
attained the age of majority prescribed by the Indian Majority
Act, cannot execute a valid will (s). A person who has not
the capacity to comprehend the extent of his property and
the nature of the claims of people whom he is excluding from
participation has not a sound disposing mind (t).

§ 746. A will, or any part of a will, the making of
which has been caused by fraud or coercion, or by such
importunity as takes away the free agency of the testator is
void (u). To constitute undue influence for setting aside a
will there must be coercion. Neither fiduciary relationship,
nor a dominating position which will readily raise a pre-
sumption of undue influence in cases of gifts inter vivos^ will
avail. The ciicumstance that one person had unbounded
influence over another even though it was a very bad influence,
would not be undue influence so as to invalidate the latter’s
will {v).

§ 747. The onus rests on the person who propounds
a will to satisfy the Court that it is the will of a free
and capable testator (i^), and where circumstances exist
which excite the suspicion of the Court, to remove such sus-
picion, and to prove affirmatively that the testator knew and
approved of the contents of the document Where a

(r) IS. Act, sec. 59. Four explanations are given. Explanation
3 says. A person who is ordinarily insane may make a will during
an interval in which he is of sound mind. Explanation 4 says: No
person can make a will while he is in such a state of mind, whether
arising from intoxication or from illness or from any other cause, that
he does not know what he is doing.

(s) Vijayaratnam v. Siidarsana Rao (1925) 52 I.A», 305, 308, 48
Mad., 614; Hardwari Lai v. Gomi (1911) 33 All., 525; Bai Gulab v.
Thakore Lai (1912) 36 Bom., 622; Knshnamachanar v. Krishnama-
chariar (1915) 38 Mad., 166.

(0 Harwood v. Baker (1880) 13 E.R., 117 P.C.; 14 Hals, 2nd
ed., p. 228.

(u) The Indian Succession Act, 1925, sec. 61.

(v) Boyce v. Rossborough (1856) 6 H,L.C , 2; Wingrove v.

Wingrove (1885) 11 P.D., 81; Baudains v. Richardson (19()6) A.C.,
169; Craig v. Lamourex (1920) A.G., 349; Parfitt v. Lawless (1872)
L.R., 2 P & D, 462; Bur Singh v. Uttam Singh (1911) 38 Cal., 355 P.C. ;
Sala Mahomed Jafferbhoy v. Dame Janbai (1898) 24 I.A., 148, 152,
22 Bom, 17, Nabagopal Sarkar v. Sarala Bala Muter A I.R. 1933
Cal., 574.

(w) Barry v. Butlin 2 Moo. P.C., 480, 12 E.R., 1089.

{w^) Shama Churn v. Khettromani (1901) 27 I. A., 10, 27 Cal., 521,
explaining the rule in Tyrell v. Painton (1894) P. 151, as not apply-
ing unless circumstances excite suspicion; Rash Mohini v. i/mesh
Chunder (1898) 25 I. A., 109, 25 Cal., 824; Sukh Dei v. Kedar Nath

58

Who can
dispose of
by will.

Fraud and
coercion.

Undue

influence.

Onus.

882

WILLS.

[chap. XXt,

Revocation.

Extent of the
testamentary
power

Will 1S5 piopounded by the pimcipal beneficial y undei it who
took a leading pait in its preparation and in procuring its
execution, probate will be refused unless the evidence removes
suspicion and cleaily proves that the testator approved of the
will (x). Ordinarily, of course, a will which is proved to
have been signed and attested will be presumed, except where
the testatoi’s capacity is questioned, to have been made by
a person of sound mind (rM The onus of proving fraud or
undue influence will be upon the cavcatoi

S 748 A will is liable to be i evoked or alteied by the
maker of it, at any time when he is competent to dispose of
his property bv will iy). But marriage does not revoke a
will or codicil of a Hindu (r), nor does the birth of a son
subsequent to the execution of the will i evoke it when he
predeceases the testatoi (a). Section 70 of the Indian Suc-
cession Act now lays down categorically what acts only
amount to revocation.

§ 749. The law of gifts has furnished the analogy for
the law of wills; it was settled in the Tagore case that even

(1901) 28 I A, 186, 23 All, 405, Percra v. Perera (1901) AC, 354,
Lachho Bibi v Gopi Narain (1901) 23 All, 472, ( raig v Lnmourex
(1920) A.C., 349, Sajid Ah v. Ibad Ah (1896) 22 I.A., 171, 23 Cal,
1 (as to what is jnsanc delusion ) , bhanuiugaruya v Manika (1909) 3o
I A, 185, 32 Mad, 400, busil v Apsari (1914) 19 C W N , 826, 20
CLJ, 501, burendra kfii>hna v Rani Dassi (1930) 47 Cal, 1043,
Saradindu Nath Raj v Sudhir Chandra L)ai> (1923) 50 (,al , 100,
Ibrahim v Mt Sada Bibi (1929) 10 Lah., 558, Jotindra Nath v
Rajlakshmi AIR 1933 Cal, 449 (menial capacity), biircndra Nath
V. Jnanendra Nath A.l R 1932 Cal , 574.

(x) Vellaswainy v bivaranian (1929) 57 l.A , 96, 32 Bom, LR,

511.

(vM 14 HMs. 2nd cd . 227.

(a,-) Tyrrell \ Painton (1894) P, 151, 157, Nabagupul v Sarala
Bala A I R 1933 Cal . 574

iy) Indian buccession Act, s 62 (revocation), where an agreement
not to revoke a will was broken, see (Jihatia Kunuui Devi v Mohan
Bikram Shah (1931) 58 1 A , 279, 296, AIR 1931 P.C , 196. For the
law before the Act, see, Pertabi Narain v Subhuo Koer (1877) 4 I A,
228, 3 Cal, 626 (no actual destruction necessary), where original will
is lost, no presumption of revocation Aditiam v Bapulal (1921) 45
Bom., 906 dissenting from Anwar Hossein v. Secy of State (1904)
31 Cal, 855 Prajabala \ Nityamoyee AIR 1934 Cal, 17, see Efan
Dassya v Podei JJasya (1928) 55 Cal, 482. No formal revocation is
necessary, Venkayarnma v. Venkalramanay amnia (1902) 29 LA, 156,
25 Mad., 678, subsequent disposal of property differently from the will
does not amount to revocation, Thakar Singh v Arya Pratinidhi A 1 R.
1928 Lah, 934, Rajendra Lai v Mrinalini (1921) 48 Cal., 1100 (con
dition of gift made impossible by donor) , Lakshmi Narasamma v.
Amrnanna (1936) 71 MLJ, 845 (no formality necessary). As to
obliterations, interlineations and alterations after execution requiring
authentication, see Sec 71 of the Art.

(z) The Indian Succession Act, proviso to s 57.

(a) Bodi V. V enkata!>ami (1915) 38 Mad., 369.

PAAX. 7i9.] EXTfiNt or testAMentarv PoWEit.

683

if wills were not universally to be regarded in all respects as
gifts to take effect upon death, they are generally so to be
regarded as to the propel ty which they can transfer, and the
persons to whom it can be transferred (a^). A Hindu may
bequeath by will whatever property he or she is entitled to
give away during life (b).

The rule is however not universal; and though a manager
can dispose of a small portion of the family property in
favour of the female members of the family by gift inter
vivos, he cannot do so by will (c). A member of an undividc'd
family cannot bequeath his coparcenary interest in the family
property, because “at the moment of death, the right by
survivorship is at conflict with the right by devise. Then
the title by survivorship, being the prior title, takes precedence
to the exclusion of that by devise” (d) . In Subbararni v.
Ramarnnia, a will made by a Hindu father who was joint
with his infant son bequeathing certain family properties to
his widow for her maintenance was held to be invalid as
against the son although it would have been a proper provi-
sion if made by the father during his lifetime (e). Explaining
this case as one wheie a father who is a co-sharer with his
minor son cannot give consent on behalf of the latter, the
Privy Council held in Lakshmi Chand v. Anaridi that as it is

(fli) (1872) LA.. Sup. Vol. 47. 69.

(6) Ante* §§382, 723; Nagalutchrnee v. Gopoo Nadaraja

(1856) 6 M.l.A , 309 (bole burviviiig coparcener), Sontaun

V. Jaggatsoondree (1859) 8 M.I A , 66; lieer Pei tab v. Maha^

rajah Rajendra (1851) 12 MIA, 38; Vallinayagam v. Pachche

(1863) 1 M.H.C., 326; Narottam v. Narsandas (1866) 3 Bom. H.C.
(A.C.J.), 6, Alanu v. Kama (1889) 12 Mad., 126, Achutan Nair v.
Cheriotti (1899) 22 Mad., 9; Promothonath v. Nagendrabala (1908)
12 C.W N., 808, Venhatasubba Rao v. Lakshrnikantamma A.I R. 1929
Mad, 785, Wazir Singh v. MoU Singh A.I.R. 1926 Lah.,*395, Basanta
Kumar Basil v. Ram Shankar Roy (1932) 59 Cal, 859. The same rule
appears to prevail m the Punjab; Punjab Customs, 34, 68; Punjab
Cubtonidiy Law, 111, 94.

(c) Parvathibai v. Bhagwant Vishwanath Patnak (1915) 39
Bom., 593.

id) Vitla Batten v. Yamcnamma (1874) 8 Mad. H.C., 6; Gooroovav,
Narrainsawmy, ib , 13; Narottam v. Narsandas (1866) 3 Bom.

H.C. (A.C.J.), 6, Gangubai v. Ramanna (1866) 3 Bom. H.C. (AC.J.),
66; IJdaram v. Ranu (1875) 11 Bom. H.C., 76; Lakshman v. Ram^
chandra (1881) 7 I.A., 181, 5 Bom., 48; Lai Bahadur v. Kanhya Lol
(1907) 34 I.A., 65, 29 All., 244, Hari Lai v. Bai Mam (1905)
29 Bom., 351; Lalta Prasad v. Sri Mahadeoji (1920) 42
All., 461. This rule applies in favour of a son in gremio
mains as much as it does in the case of a son in esse, Hanmant
Ramchandra v Bhimacharya (1884) 12 Bom.. 105, Parmanund v.
Shivcharan Das (1921) 2 Lab., 69; Parvatibai v. Bhagwant (1915)
39 Bom., 593, Miinni Lai v. Mt. Phula A.I.R. 1927 All., 679; Jamnadas
V. Gordhandas A l.R. 1926 Bom., 463.

(e) (1920) 43 Mad., 824.

Devise of
coparcenary
property with
consent of
others.

884

WILLS.

[chap. XXI,

open to a coparcener with the consent of his cosharers
to charge for his own separate purposes the share
of the joint family property which would come to
him on a paitition, a will made by one coparcener with the
consent of the other coparceners, where they are adults, will
be valid, not as a will, but as an agreement operative to
transfer the property to the donee oi legatee (/). A bequest
of joint family piopeity can be ratified by the surviving
coparcener eithei by himself electing to take under the will
or otheiwise {/M- Wheie a son who is appointed executor
and trustee under his father’s will, obtains probate and
accepts the position, he cannot assert an adveise title claiming
that the propeity as joint family property, until he has
got a discharge from the trust (/“).

Anv disposition of ancestral property by will will be
invalid as against a son born or adopted subsequent to the
execution and before the testator’s death, as also against a
son in the womb at his death (g). But where a son born or
adopted predeceases him, the dispositions of the will are good;
for a Hindu will, like an English one, speaks as fiom the death
of the testatoi, and its dispositions, if then not contrary to
law, will be enforced {h) ,

(/) (1926) 53 I A., 123, 48 All, 313, following Brijraj Singh v.
Sheodan Singh (1913) 40 I A, 161, 35 All, 337 The decibion in
Appan Patrachanar v Srimvasachariar (1917) 40 Mad, 1122 is good
law to the extent that the will, not as a will but as a gfft by agree-
ment IS valid Sadasivam v Sandanani A.I.R 1927 Mad., 126,
Seetayya v Muthyalu A l.R. 1931 Mad , 106 , Baba Singh

V Lai Kiier A.I R. 1933 All, 830, V enkoba Sah v. Ranganayaki
(1934) 71 MLJ, 454 The actual decision in Bhikabai v Purshot-
tam (1926) ^50 Bom., 558 where a father disposed of the whole
ancestral property by will and not only the father’s undivided share
was right. But the reasoning that a will by which he transfers
his undivided share, even with the consent of his adult son, cannot
be regarded as an agreement is opposed to the decision in
48 All, 313 PC

ip) Parnianiindoss v Venayek Rao (1882) 9 I A , 86, 7 Bom, 19,
Anandrao v Admr Gcnl of Bombay (1896) 20 Bom, 450 As to
election, see sec. 180, Succn. Act which applies to Hindus Kishen
Chand v Aarinjan (1929) 10 Lah , 389

(/-) Snnivasamurthi v. V enkatavarada (1911) 38 I.A , 129, 34

Mad., 257 affg , 29 Mad , 239.

(g) A child in the womb and a son adopted by the testator's
widow after his death arc in contemplation of law in existence at the
death of the testator, the Tagore case (1872) I.A, Supp. Vol. 47,
Bodi v Venkatswami Naidu (1914) 38 Mad., 369, Hanmant v.

Bhimacharya (1888) 12 Bom, 105, Minakshi v Virappa (1885) 8
Mad., 89, Aiyasami Udayar v. Appasami (1915) 28 M.L.J., 542, 545;
Alkhu Ram v. Raman Lai A.I.R. 1933 All., 7 {en ventre sa mere) ,
V enkatanarayana Pillai v. Subbammal (1915) 43 I. A., 20, 39 Mad., 107
(adoption), Parmanund v Shivcharan (1921) 2 Lah., 69 (adoption).

(A) (1914) 38 Mad., 369 supra.

PARA. 749.] EXTENT OF TESTAMENTARY POWER.

885

Where a will contains an authority to adopt and a dis-
position of ancestral property, an adoption made by the
widow subsequent to the testator’s death, does not affect the
disposition; ‘for the will speaks as at the death of the testator,
and the property is carried away before the adoption takes
place’ (0*

Where a member of an undivided Hindu family declares
his intention to sever in interest, he can bequeath his undivided
share in the property. It is immaterial that the communica-
tion of the testator’s intention to sever, though sent before,
was received after his death by the other coparcener (/) .
Communication may be necessary only where the other co-
parcener is not a minor under the testator’s own guardian-
ship (A).

A woman may dispose of by will any property which
during her life is absolutely under her own control (Z). She
cannot dispose of property which she had inherited from a
male and as to which her estate is limited by the usual
restrictions. This rule is now universal in the case of a
widow under the Hindu Women’s Rights to Property Act,
1937, which makes her estate a limited one in all cases,
notwithstanding any rule of Hindu law or custom to the
contrary (m).

(i) See ante §204; Krishnamurthi v. Krishnamurthi (1927) 54 T.A.,
248, 50 Mad, 508; Lakshmi v. Subrainanya (1889) 12 Mad., 490;
Narayanaswami v. Ramaswami (1891) 14 Mad., 172. The giving of an
authorily to adopt is not necessarily inconsistent with the conferring
of an absolute estate on the widow. Jeevkore tihai v. Knshnadoss
(1932) 63 M.LJ, 242.

(/) Narayanarao v. Punishottamrao (1938) 1 M.L.J,, 45; Rama
Ayyar v. Meenakshi Ammal A.I.R. 1931 Mad., 278.

(k) Venkateswara Pattar v. Mankayammai (1936) 69 M.L.J., 410,
421-423; A.S. 353 of 1933, (1938) 1 M.L.J. S.N,, 35; but see Shiiappa
Rudrappa v. Rudrava (1933) 57 Bom , 1.

(Z) Venkatarama v. Vcnkatasurya (1880) 2 Mad., 333 P.C. Ante
§§ 618, 619.

(m) Before the Act, as to movable property inherited by a
woman in the Mithila School, see Snreshwar v. Maheshrani (1921) 47
I.A., 233, 238, 48 Cal., 100; Latur Rai v. Bhagwan Das A.I.R. 1936
Pat., 80; Jagannath Prasad Singh v. Surajdeo Narain Singh A.I.R.
1937 Pat., 483. In Bombay, whether under the Muakshara or the
Mayukha, a widow has no power to devise inherited movables, though
in the Mayukha jurisdiction, she could dispose of them during her
lifetime. See ante §643; Bechar v. Bai Lakshmi (1863) 1 Bom. H.C.,
56; Bai Devkore v. Amritram (1885) 10 Bom., 372; Sha Chamanlal
v. Ganesh (1904) 28 Bom., 453; Bhagirathibai v. Kahnujirao (1887)
11 Bom.. 285 F.B., Gadadhar v. Chandrabhagahai (1892) 17 Bom., 690
F.B.; Chamanlal v. Bai Parvati (1934) 58 Bom., 246, 253.

886

WILLS.

[chap. XXI,

Disinheritance.

Ineffectual

devise.

§ 750. A mere expression in a will that the heir-at-law
shall not take any part of the testator’s estate is not sufficient
to disinherit him, without a valid gift of the estate to some
one else. He will take by descent, and by his right of
inheritance, whatever is not validly disposed of by the will
and given to some other person (n). A person is deemed
to die intestate in respect of ‘all property of which he has
not made a testamentary disposition which is capable of
taking effect (o) Where under the terms of a will the
corpus of the estate is not to vest until the happening of a
certain event, it will in the meantime vest in the heir, and
on the death of the heir intestate it will devolve on his
heir (p). On the other hand, it is not necessary that a will
should contain an express declaration of a testator’s desiie
or intention to disinherit his heirs, if there is an actual and
complete gift to some other person capable of taking under
it (//) And where a testator cleat ly expresses his intention
to disinheiit his son and at the same time bequeaths his
property to anothei, the foimer will, in a doubtful case, en-
able the latter to be construed as an absolute estate (r).

Where there is a residuary legacy, all property w^hich is
not effectually disposed of by the testator will fall into the
residue (5). But when there is no valid residuary legacy,
the property undisposed of goes to the heir.

A bequest in favour of an infant, an idiot, a lunatic or
other disqualified person will be valid, for, as possession
under a devise is not necessary to its validity, it is not
necessaiy that the legatee should be capable of assenting to

(/z) Per Peacock, C J in the Tagore case (1867) 4 BLR.

(OCJ ) 103, ft?. Per Willes, J, on appeal, 9 BLR, 402, I A, Supp.
Vol 47, Promotho v Radhika (1875) 14 BLR, 175, Lallubhai v
Monhuvarahai (1878) 2 Bom, 488, Miilraz v. Chahkam (1838) 2
Ml A, 54, Sut)bayYO v SiiraY}a (1887) 10 Mad, 251, Narottam v
Narasaridas (1866) 3 Bom H.C (ACJ), 6 The rule of English
law that the heir-at law is not to be disinherited hut hv express woids
or by necessary implication has no application to the wills of Hindu^,,
Tarakeshwar Roy \. Shoshi Shikareswar (1883) 10 LA , 51, 60, 9 Cal ,
952

(o) As, for instance, where a person has appointed his txeciitors
but made no dispositions of his property, or the disposition is invalid
or illegal, or is upon a contingency which has not yet happened, or
where there is a valid disposition of part of the propertv and he dies
intestate as to the rest See see 30, Sue Act and illustration

ip) Amulya v Kahdas (1905) 32 Cal, 861

iq) Prosiinno v. Tarrucknath (1873) 10 BLR, 267, 19 W R , 18.

(r) Nursing \. Mahalaksh mamma (1928) 55 I A, 180, 196, 197,

50 All. 375

( 5 ) S. 103, I. S Act, Pursottamdas v. Gobirid (1926) 51 MLJ, 6
P.C. But where a share which is part of the geneial residue lapses,
it will go as undisposed of to the heir S. 108, I, S. Act. Elizabeth
V. Sutherland A.I.R. 1936 Rang., 134.

PARAS. 750-752.] GIFTS TO UNBORN PERSONS.

887

it (^). A person who is guilty of murdering the testator can-
not take any benefit under his will (t^).

§ 751. Apart fiom recent legislation, under Hindu law
the person capable of taking under a will must be such
a person as could take a gift inter vivos, and therefore must
either in fact or in contemplation of law be in existence at
the death of the testator (a). This was put upon the ground
that the law of gifts during life requires relinquishment ‘in
favour of the donee who is a sentient person’ (v). In the
Tagore case, however, it was observed that though the general
principle of Hindu law is that a donee must be in existence,
there may be exceptional cases of provisions by way of con-
tract or of conditional gift on marriage or other family
provision for which authority may be found in Hindu law or
usage iw).

The view adopted in the Tagore case, that gifts to
unborn persons were necessarily bad as repugnant to
Hindu law, was obviously not that of the draftsman of the
Hindu Wills Act, 1870, oi else he could never have incorpor-
ated in it s. 101 of the Indian Succession Act, 1865. Indeed
one eminent judge of Bengal, Wilson, J. held that the Hindu
Wills Act must be taken to have altered the Hindu law in
this respect (,x), but this was dissented fiom in later cases
in Bengal and in other High Courts (y) . The result was
constantly to defeat the obvious and clearly expressed inten-
tions of Hindu testators, and was felt by the community
as an intolerable restriction on their freedom of disposition.

§ 752. Accordingly the law in this respect was
altered by Madras Act I of 1914 which applied
not only to futuie dispositions but also to wills executed

(t) Kooldeb Naram v. Wooma (1863) Marshall, 357, 2 Hay., 370.
(M) In the Estate of Hall, Hall v. Knight and Baxter 11914] 1 P.
1; He Houghton, Houghton v. Houghton 119151 2 Ch., 173.

(m) J uttendromohun Tagore v. Gnanendromohun Tagore (1872)
I. A., Slip. Vol. 47, 70, 9 6.L.R , 402; Chandi Charan v. Sidheswan
(1889) 15 I.A., 149, 16 Cal., 71, Kristoromoney v Norendro (1886)
16 LA , 29, 39, 16 Cal., 383 Bat Motivahu v. Bai Mamubai (1897)
24 I.A., 93, 21 Bom., 709; affg. (1891) 15 Bom., 443; Dinash Chandra
Roy V. Biraj Kamini (1911) 15 C.W.N., 945.

D. Bh., 1, 21, (1872) I A. Sup. Vol., 47, 67 supra,
iw) (1872) T.A., Sup. Vol. 47, 70 supra. Raja of Ramnad v.
Sitndarajmndya (1910) 46 I.A , 64, 42 Mad., ,581 affg (1914) 27
M.L.J., 694, Khajet Solehman v. Sir Salimullah (1922 ) 49 I.A., 153,
49 Cal., 820, Jatindra v Ghanashyani (1923) .50 Cal, 266.

(x) Alangamonjari Dabee v. Sonamom Dabee (1882) 8 Cal., 157.

(y) (1882) 8 Cal., 6,37; Jairam Narronji v. Kaverbai (1885) 9
Bom., 491; Yethirajulu Naidii v. Mukuntha Naidu (1905 ) 28 Mad.,
363, Radha Prasad Mullnk v. Ram Money Dust (1910) 38 Cal., 188,
on appeal (1913) 41 J.A , 176, 41 Cal., 1()07.

Estate must
be one
allowed by
Hindu law.

Recent

Statutes

Bequests to
unborn
persona
valid.

888

WILLS.

[chap. XXI,

before the date of the Act, in respect of such
dispositions as were intended to come into operation after
the date of the Act ( 2 ) . The validity of a disposition in favour
of an unborn person was however made subject to the rule
against perpetuity contained in section 101 of the Indian Suc-
cession Act, 1865, Following the lead given by the Madras
Act, in 1916, an Act of the Indian Legislature, the Hindu
Disposition of Property Act fXV of 1916) was passed
declaring the validity of dispositions in favour of unborn
persons subject to the provisions of sections 100 and 101
of the Indian Succession Act, 1865, and to an independent
provision modifying section 103 of the Indian Succession
Act, 1865, confining the failure of the prior bequest to
the grounds stated in sections 100 and 101 but not specifically
excluding section 102 of the Act This Act applies to the
whole of British India except to the province of Madras to
which however it might be extended In 1920, in Soiindara
Rajan v. Nafarajan, it was discovered that the Madras
Act (I of 1914) which was passed by the Provincial
Legislature was ultra vires that legislature in so far as it
purported to affect the law administered on the original side
of the High Court, having regard to the provisions of
the Indian Councils Act, 1861, and the Indian High Courts
Act, 1861 fa). As a consequence, in 1921, the Indian
Legislature intervened with the Hindu Transfers and
Bequests (City of Madras) Act (VITI of 1921) which simplv
repeated the provisions of Madras Act I of 1914 and applied
them to the City of Madras.

As the Hindu Wills Act applied section 102 of the
Indian Succiission Act, 1865, relating to invalidity of gifts
to a class, to the City of Madras, the combined operation of
that section <and of the enactments making dispositions in
favour of unborn persons valid, resulted in an anomaly which
was illustrated in the decision of the Judicial Committee in
Soundara Rajan v. Natarajan (6). In 1925, the consolidating

(z) The Hindu Transfers and Bequests Act (Madras Act I of
1914), s 2 (2).

fa) (1920) 44 Mad,, 446

ib) (1924) 52 I A , 310, 48 Mad, 906. As there could be no valid
gift to unborn persons, sections 100 to 102 of the Succession Art did
not apply to Hindu wills by reason of the saving clause m the Hindu
Wills Act as interpreted bv the Courts Alangamanjari v Sonamani
fl882) 8 Cal., 637, Ram Lai Sett v Kanai Lai Sett (1886) 12 Cal,
663, Bhagabati v Kali Charan (1911) 38 T A , 54, 38 Cal, 468. When
such gifts were made valid by the new legislation, the saving dis-
appeared and sections 100 to 102 became directly applicable to Hindu
wills governed by the Hindu Wills Act, with the anomalous result that
even bequests to members of a class which were valid before, became
invalid.

PARAS. 752-753.] GIFTS TO UNBORN PERSONS.

889

Indian Succession Act was passed, sections 113 to 117 of that
Act replacing sections 100 to 104 of the Indian Succession
Act, 1865. It became necessary to amend the new Succession
Act of 1925 as well as to bring all the connected Acts into
line and hence the Transfer of Property (Amendment) Sup-
plementary Act (XXI of 1929) was passed (c). By that Act,
section 115 of the Indian Succession Act, 1925, was substan-
tially modified so as to make a bequest to a class void only
in regard to those persons as to whom it would be inoperative
by reason of sections 113 and 114 of the Indian Succession
Act. Sections 116 and 117 of the Indian Succession Act, 1925
were also modified. The three Acts altering the rule in the
Tagore case were also amended by making the bequests
in favour of unborn persons subject to the limitations and
provisions contained in sections 113 to 116 of the Indian
Succession Act, 1925, as amended by the Transfer of Properly
(Amendment) Supplementary Act (XXI of 1929) (rf).

§ 753. Dealing with gifts and bequests to unborn
persons, section 2 of Act XV of 1916 lays down: —
Subject to the limitations and provisions specified in
this Act, no disposition of property by a Hindu, whether by
transfer inter vivos or by will, shall be invalid by reason only
that any person for whose benefit it may have been made, was
not in existence at the date of such disposition (e). The
date of the disposition, when it is by will, is the date of the
testator’s death.

The limitations and provisions subject to which a bequest
in favour of an unborn person may now be made are
those specified in sections 113 to 116 of the Indian Succession
Act, 1925, as amended.

Section 113: Where a bequest is made to a person not in
existence at the time of the testator’s death, subject to a prior
bequest contained in the will, the later bequest shall be void,
unless it comprises the whole of the remaining interest of the
testator in the thing bequeathed (/).

(c) Secs. 12, 13 and 14. These amendments have no retrospective
operation, sec. 15.

id) The saving contained in restriction No. 2 in Schedule III to
the Act does not of course touch the enactments repealing the rule in
the Tagore case but only serve to keep that rule alive in respect of
wills executed before the dates of those enactments.

(e) Section 3 of Madras Act I of 1914 and section 3 of Act VIII
of 1921 are also to the same effect. The Madras Act applies also
to wills made before the Act in respect of dispositions taking effect
after the Act. See V enkayamma v. Narasamma (1917) 40 Mad., 640;
Muthusami Aiyar v. Kalyani Ammal (1917) 40 Mad., 818.

(/) See illustrations to section 113, the Indian Succession Act;
Kuppuswami v. Jayalakshmi (1935) 58 Mad., 15.

The Indiar
Succession
Act

Gift to unborn
persons

Must be
of whole
lemainmg
interest.

890

Rule

against

perpetuity.

Gift to a
class.

RULE AGAINST PERPETUITY. [ CHAP. XXI,

Section 114^ No bequest is valid whereby the vesting of
the thing bequeathed may be delayed beyond the lifetime of
one or more persons living at the testator’s death and the
minority of some person who shall be in existence at the
expiration of that period, and to whom, if he attains full
age. the thing bequeathed is to belong (/^).

While the interest which is given cannot be postponed
beyond the minority of the person to whom it is given, it
is immaterial whether or not the persons from the termination
of whose lives the period of eighteen years is to be computed
take any interest m the property oi aie connected with the
pel sons taking such interest {/“). The lule against peipetui-
ties is applied by scrutinising the validity of the gifts as at
the death of the testatoi, having legard, as a general rule, not
to the events which have actually happened but to the events
which might have happened If the legacies aie so given
that in a possible event, the tides as to remoteness will be
infringed, then they fail although in the particular events
which have actually happened, the legal period was not
exceeded if^).

Section 115 If a bequest is made to a class
of persons with regard to some of whom it is inoperative by
reason of the provisions of section 113 oi section 114, such
bequest shall be void in regard to those peisons only and not
in regard to the whole class (g).

This bungs the law into confoimity with the decision of
Wilson, J, in Ram Lai Sett v. Kanai Lall Sett ih) and the
decisions of the Pi ivy Council in Bhagahati v. Kali Chaian (i)

V '

(P) See the illustrations to section 114, the Indian Succession
Act. This differs fiuin the English rule which is lu the effect that
every limilatiorf of properly must, to be valid, vest within a life or
lives m being and twenty-one years and a period of gestation after-
wards The period of twenty-one years is a period in gross without
reference to the minority of anyone 1'hc peison whose minority may
be referred to need not be the donee or take any interest in the pro-
pel ty, 2.S Hals 2nd ed , 79, 96

(/-) 25 Hals. 2nd ed., p. 95.

(/3) 25 Hals 2nd ed., 125, Soundara Rajan v Natarajan (1924)
52 I.A , 310, 319, 320, 48 Mad, 906, Saudaniiney Dossee v Jogesh-
chandar (1877) 2 Cal, 262, Nabin Chandra v. Rajain Chandra (1920)
25 C.W N , 901, Kalachand Miikherji v Jatindra Mohan (1929) 56
(’al , 487, Dungannon (Lore/) v. Smith (18^16) 8 E.R , 1523, In re
Wilnier's Trusts, Moure v Wingfield (1903) 2 Ch , 411,422, per Stirling,
L.J.

(g) .See the illustrations to section 115, the Indian Succession Act,
1925.

(A) (1886) 12 Cal., 663; Rat Rishen Chand v Mt Asmaida Koer
(1884) 11 I A , 154, 6 All, .560

(0 (1911) 38 I A, .54, 38 Cal., 468, affg. (1905) 32 Cal., 92.

PARAS. 753-754.]

WILLS.

891

and Ranimoni Dassi v. Radha Prasad (;) and abrogates the
rule laid down in Leake v. Robinson (k).

Section 116: “Where by reason of any of the rules
contained in sections 113 and 114, any bequest in favour of
a person or of a class of persons is void in regard to such
person or the whole of such class, any bequest contained in
the same will and intended to take effect after or upon failure
of such prior bequest is also void” (/). It is only where the
prior bequest is void for remoteness or as contravening the
rule in section 113 that the ulterior bequest is void. But
the failure of the prior bequest for any other reason will not
invalidate the subsequent bequest; it will only accelerate
it iP).

§ 754. The doctrine laid down in the Tagore case (m)
that a gift to a person not in existence is invalid has never
had any application to gifts or trusts for religious or charit-
able purposes and to directions for the dedication of properly
for the establishment of images and the worship thereof. The
rule against perpetuities does not apply to a bequest creating
a charge of the whole oi part of a testator’s property in favoui
of a temple or for service or worship of an idol or for other
religious or charitable purposes (n).

(;) (1914) 41 LA, 176, 41 Cal, 1007. The decisions m /?o/o-
moyee Dassee v. Troyluhho Mohiney Dassee (1902) 29 Cal, 260;
Anandrao Vinayak v Admr. Genl of Bombay (1896) 20 Bom., 450:
Sivasankara v. Soobramama (1908 ) 31 Mad, 517 affirmed in 17
C.W.N., 488 P.C. and Soundararajan v. Natarajan (1925) 52 I A., 310,
48 Mad , 906 are no longer law.

{k) (1817) 2 Mer, 363. 35 E.R. 979.

(/) See the illiistralion to section 116 of the Indian Succesion
Act, 1925.

(/^) The Tagore case (1872) T.A., Supp. Vol 47, 80; Saudaminey
Dasi V. Jogesh Chander (1877) 2 Cal, 262, Ajudhie Buksh v. Riikmin
Kuar (1883) 11 I A, 1, 10 Cal, 482, Akhoy Mam v. Nilmoni (1887)
15 Cal, 282; Radha Prasad v. Ram Mam (1906) 33 Cal, 947, 962,
963 (modified on another point as to the quantum of estate taken by
the daughter’s sons in 35 I A., 118, 35 Cal , 896) , See Javerbai v.
Kabhbai (1891) 16 Bom.. 492, 497.

im) (1872) I. A., Sup. Vol 47.

(n) Bhiipati Nath SmnU Thirtha v. Ram Lai Maitra (1910) 37
Cal, 128 F.B. (idol); Kayastha Pathasala v. Mt Bhagwatt (1936)
64 I A, 5, 15, 16, AIR 1937 A.(l 4; Adnir. General, Bengal v.
Hughes (1913) 40 Cal, 192; Mathura Nath Maker jee v Lakhi Naram
(1922) 50 Cal, 426; Ajit Kumar Mitra v. Tarubala Dossee (1936) 63
Cal, 209, Prajulla Gh under Mulluk v. Jogendra (1905 ) 9 G W.N ,
528; Jairam v. Kuverbai (1885) 9 Bom., 451; Parbati v. Ram Barun
(1904) 31 Cal., 895; Hemangim v. Nobinchund (1882) 8 Cal, 788;
Bhuggobutty Prosonno Sen v. Gooroo Prosonno Sen (1898) 25 Cal,
112; Jamshedji-C’Tararhand v. Soonabai (1911) 33 Bom., 122; Mohar
Singh V. Het Singh (1910) 32 All, 337 (idol); Goodman v. Saltash
Corporation (1882) 7 A.C., 633, Wallis v. Solicitor General New
Zealand, (1903) A.C., 173.

Effect of
invalid
prior beq lies'

Rule in
Tagore case
inapplicable
to chanties.

892

GIFTS TO CHARITIES.

[chap. XXI,

Rule against
perpetuity
inapplicable
to chanties.

Succession
Act, s. 112.

While section 18 of the Transfer of Property Act excludes
the rule against perpetuities in case of gifts inter vivos for
religious or charitable purposes, there is no similar exception
in the Indian Succession Act; yet, contrary to the decisions in
Bhuggobutty Prosonno Sen v. Gooroo Prosonno Sen (o) and
Administrator -General, Bengal v. Hughes (p), it was held in
Jones V. Administrator-General of Bengal (q) that section 114
of the Indian Succession Act applies to religious and charit-
able gifts. But both section 14 of the Transfer of Property
Act and section 114 of the Indian Succession Act apply in
terms only to gifts and bequests to living persons and not to
gifts and bequests for religious and charitable purposes. The
reference to ‘the minority of some person who shall be in
existence and to whom if he attains full age the thing
bequeathed is to belong’, makes it clear that it has no appli-
cation to such cases. The absence of a section in the Indian
Succession Act corresponding to section 18 of the Transfer
of Property Act, which appears to be superfluous, does not
therefore make the rule against perpetuity applicable to
bequests for religious and charitable purposes. There is
nothing therefore in section 114 to affect the rule of Hindu
law in the matter so far as such gifts are concerned.

§ 755. Though section 112 of the Indian Succession Act
is not included in the enactments altering the rule in the Tagore
case (r), that section also applies to wills made by Hindus.
Section 99 of the Indian Succession Act, 1865 which corres-
ponded to the present section 112 was however held not to
apply to the will of a Hindu or invalidate provisions made
in accordaupe with the principles of Hindu law ( 5 ).

Accordingly, a bequest by a father to the would-be wife of
a son who was in existence at the time of the testator’s death
was held to be a valid bequest, within the exception of
section 99, corresponding to section 112 of the Indian Suc-
cession Act, 1925 (f). This would be so even after the

(o) (1898) 25 Cal., 112.

(p) (1913) 40 Cal, 192

(q) (1919) 46 Cal, 485

(r) (1872) I A Sup Vol 47.

(s) Alangamonjari v Sonamoni Dabee (1882) 8 Cal, 637; Cally
Nath Naiigh v. Chunder Nath Naiigh (1882) 8 Cal, 378, Ram Lai
V Kanai Lai (1886) 12 Cal., 663, Jai Ram v Kuverbai (1885) 9
Bom., 491, Anand Rao v. Admr Genl of Bombay (1895) 20 Bom,
450, Dinesh Chandra Roy v Biraj Kamini Dassi (1912) 39 Cal., 87.

(^) Dinesh Chandra Ro\ v. Biraj Kamini Dassee (1912) 39 Cal.,
87, Nakshetramali Dei v. Braja Sunder Das (1933) 12 Pat., 708.

893

PARAS. 755-756.] StCOND RULE IN TAG6RE CASE.

enactments altering the rule in the Tagore case which
empower a Hindu to make a bequest in favour of an unborn
person within limits. But apart from the cases coming
within the exception, a bequest to a person by a particular
description will be void if there is no person in existence
at the testator’s death answering that description; for the
reasons given for the inapplicability of the section to Hindu
wills in the earlier cases no longer exist.

§ 756. Accoiding to the second lule laid down in the Estates
Tagore case, a man cannot create a new form of estate, or
alter the line of succession provided by law, for the purpose
of carrying out his own wishes or policy (u). The reasons
foi this were stated by Mr. Justice Willes: “The
power of parting with property once acquired, so as
to confer the same property upon another, must take effect
either by inheritance or transfer, each according to law.
Inheritance does not depend on the will of the individual
owner; transfer does. Inheritance is a rule laid down (or,
in the case of custom, recognised) by the State, not merely
for the benefit of individuals, but for reasons of public
policy (a^). It follows directly from this that a private
individual, who attempts by gift or will to make property
inheritable otherwise than the law directs, is assuming to
legislate, and that the gift must fail, and the inheritance take
place as the law directs” (v). Therefore, all estates of
inheritance created by gift or will, so far as they are incon-
sistent with the general law of inheritance, are void as such.

For instance, a Hindu donor or testator cannot create an
estate-tail (t;^) or an estate excluding female heirs (m;) or

(m) Tagore v. Tagore (1872) I. A. Supp. Vol., 47, 9 B.L.R., 394.

The Tagore case decided not only that a devise to an unborn person

15 invalid but that an attempt to create a new rule «f inheritance is
also invalid (1888) 16 I.A., 29, 39 infra,

(u^) Domat, 2413.

(v) 9 B.L.R., 394, 396, LA. Supp., Vol 47. See Sonatun Bysack v.

Juggut Soondree (1859) 8 M.LA., 78, Soshi v. Tarokessur (1881)

6 Cal., 421, affd. Kunwar Tarakeswar v. Kumar Soshi (1883) 10 I.A.,

51, 10 Cal., 952; Suriya Row v. Gangadara (1886) 13 LA., 97, 9 Mad.,

499; Shookmoy v. Monohari (1881) 7 Cal., 269, affd. (1885) 12 I.A.,

103, 11 Cal., 684; Krishtoromoney v. Narendra (1888) 16 LA., 29,

16 Cal., 383.

(t;i) The Tagore case (1872) 1. A. Sup. Vol. 47.

(m;) Rani Tarakessur Roy v. Soshi (1883) 10 LA., 51, 9 Cal., 952;
Vallabhdas v. Gordhandas (1890) 14 Bom., 360, Venkata v. Chellay-
ammi (1894) 17 Mad., 150; Lakshmakka v. Boggararnanna (1896)

19 Mad., 501; Dhanalaxmi v. Hariprasad (1921) 45 Bom., 1038; see
Admr, GenL, Bengal v. Lai Bihari Dhar (1934) 61 Cal., 393, affd. in
Ganesh Chunder v. Lai Behary Dhar (1936) 63 LA., 448; Madura
Hindu Permanent Fund v. Kamakshi (1926) 50 M.L.J., 355; Madhav
Rao V. Balabhai (1927) 55 LA., 74, 52 Bom., 176.

894

WILLS. [citAP. XXl,

male heiis (a.) oi hehs by adoption (y) or any classs of heirs
oi any paiticuldi hens fioni succesbion (z) ,

This would be so only wheie the woids ‘male heiis’ oi
‘male descendants’ in a will have to be construed as words
of inheiitancc. But if they could be tonstuied as woids of
dnect or independent gift to such peisons, it would be a
good gift to them where they could validly take under it («^).

Limited § 757. There is no rule that the fiist lecipient must take

estates valid, interest possessed by the testatoi, for limited inteiests

are common enough (a). It is open to a donoi oi testator to
create an estate for life oi successive life interests or any
other estate for a limited teim provided that the donee is a
person capable of taking under the gift or bequest (h) ,

Where a donoi or testatoi attempts to cieate an estate
heritable otherwise than m accordance with Hindu law, such
a gift cannot take effect except in favour of such persons as
could take under the gift to the extent to which the gift is
consistent with law. The first taker would take for his life
because the giver had at least that intention. He could not
take more because the language is inconsistent with his having
anv different inheritance fiom that which the gift attempts to
confei and that estate of inheritance whuh it confeis is
void (c).

Executory § 758. Undei Hindu law, a testator can give piopeity

bequest whether by way of remainder oi by way of executory bequest

upon an event which is to happen, if at all, immediately upon
the close of a life in being This rule, which has lepeatedly
been affirmed, was fiist laid down by the Pi ivy Council in

(t) Kunhamina v KinihambL (1909) 32 Mad, 315.

(y) Suriya Rao v Raja of Rittapur (1886) 13 1 A , 97, 9 Mad,
499.

( 2 ) Puma Subhi v. kalidhan (1911) 38 I.A , 112, 38 Cal, 603
(daughters and iheir sons) , Manohar Mukerji v. Bhupendranath
(1933) 60 Cal, 452 FB Under tin* guise of a trust of inheritance,
a testator cannot indirectly create beneficiary estates which cannot
directly be given Without llie intervention of a trust, tlie Tagore case
(1872) I A Supp Vol 47, 72

( 2 H Madhav Rao v Balahhai (1927) 55 I A , 74, 52 Bom, 176

(а) kribloromoncy v. Narciidro (1889) 16 I.A., 29, 39, 16 Cal,
383, 392.

(б) Tagore v Tagore (1872) LA. Sup Vol. 47, 62, Ram
Tarakessur v. Sobhi (1883) 10 lA, 51, 9 Cal, 952, see Nisar Ah
Khan v. Mohammed Ah Khan (1932) 59 I A , 268; Ambalal Hargovind
V. Ambalal Shivlal A TR 1931 Bom, 34, 34 Bom. LR, 1506

{f) (1872) t A Sup. Vol 47, 66 supra, (1889) 16 1 A , 29, 16
Cal, 38.1 supra. Ram Tarokessur v Soshi (1883) 10 I A , 51, 9 Cal,
952, Mamckyamala v. Nandkiimar (1906) 33 Cal., 1306.

t*ARA. 756 .]

EXECUTORY bequests.

m

Soorjeemoney Dossee v. Denobundoo Mullick ((/). There
a testator by his will left his property to his five sons pro-
viding that if any of his five sons should die without male
issue, his share should pass over to the sons then living, or
their sons and that neither his widow nor his daughter, nor

his daughter’s son should get any share out of his share.

One of the sons died, leaving nb male issue and it was held
that his interest determined on his death and the gift over
was upheld.

It is settled therefore that a gift or bequest may validly Defeasance,
be made, conferring an absolute estate, providing for its
defeasance on the happening of a subsequent event. That
event must however happen, if at all, immediately upon the
close of a life in being (e). A defeasance by way of gift
over must be in favour of some person who is capable of

taking under the gift (/). An unborn person will, now

under the altered rule, be capable of taking under such gift
provided the gift to him will take effect if at all within the
legal period set by the rule against perpetuity.

In Chunilal Parvati Shankar v. Bai Samrath, the Privy
Council pointed out that the period to which an exe-
cutory devise will be leferred, will be the death of the
first taker, unless, there are other circumstances and directions
in the will inconsistent with that supposition (g).

But section 124 of the Succession Act, 1925 which repeats Contingent
the provisions of section 111 of the Act of 1865 creates a
difficulty. It provides: “Where a legacy is given, if a ’
specified uncertain event shall happen and no time is
mentioned in the will for the occurrence of that event, the
legacy cannot take effect, unless such event happens before
the period when the fund bequeathed is payable or distri-
butable” (h).

{(1) Soorjeemoney Dossei v. Denobundo Mullick (1862) 9 M.I.A.,
123.

(e) (1862) 9 M.I.A., 123, 135; the Tagore case (1872) I.A.,
Supp. 47, 69, 70; Bhoobun Mohini v. Hurrish Chunder (1878 ) 5 I.A.,
138, 148 ; 4 Cal., 123; Kristoranioney y. Norendra Krishna (1889)
16 I.A., 29, 16 Cal., 383; Lain Mohun v. Chukkan Lai (1897) 24
I.A,, 76, 24 Cal., 834; Sarnjabala v. Jyothirmoyce (1931) 58 I.A., 870,
59 Cal., 142.

(/) (1899) 16 I. A., 29, 16 Cal., 383 supra,

(g) (1914) 38 Bom., 399, 18 C.W.N., 844 P.C., following O'Mahoney
V. Burdett (1878) L.R., 7 tl.L., 388; Navalchand v. Mancckchand
(1921) 23 Bora.L.R., 450.

(/O Sec illustration 2 to sec. 124 of Act XXXIX of 1925.

wiLl§.

tcHAlP. XXI,

In N orendranath v. Kamalbasini, a Hindu testator be-
queathed his property to his three sons and provided that on,
“any one of the sons dying sonless, the surviving sons shall
be entitled to all the properties equally” (i) , On the con-
struction of section 111 of the Indian Succession Act, 1865
(which was the same as the present section 124 of the Indian
Succession Act, 1925) as applied by the Hindu Wills Act,
1870, the Privy Council held that the period of distribution
was the death of the testator and the gift to the three sons
was indefeasible at that date, as the executory gifts could not
take effect.

In Indira Ram Chose v. Akshay Kumar Chose (/) the
Judicial Committee distinguished Norendra NatJis case (k)
as turning upon the construction of the will in that case and
held that section 124 does not apply if a period is specified
in the will within which the contingent event is to happen, oi
putting it otheiwise, that the section only applies if, without
doing violence to the terms of the will, it can be held as a
matter of words that the occurrence of the uncei tain event prior
to the period when the fund became payable or distributable
is alone within the contemplation of the testator. And a warn-
ing was given against applying too rigid a construction of
the English language to the will of an Indian testator.

Section 124 can therefore apply only where no time is
indicated in the will, expressly or by reasonable inference,
for the occurrence of the uncertain event, other than the
death of the testator as the sole point of time (/).

So far as gifts or settlements inter vivos aie concerned,
neither section ^24 of the Succession Act nor the decision in
N orendranath’ s case has any application whatever and the
decision in Soorjeemoney v. Denobundoo Mullick {m) and
the cases following it remain altogether unaffected (n).

(0 (1896) 23 I A, 18, 23 Cal, 563.

(y) (1933) 59 I A , 419, 60 Cal, 554, Chandidas v. Malina Bala
(1936 ) 41 C.W N., 432 (provision that widow, if childless, should get
only maintenance, does not divest pioperty vested in her husband).
(k) (1896) 23 I A, 18, 23 Cal, 563.

(/) Bhupendra Krishna Ghose v. Amarendra Nath Dey (1916) 43
I.A., 12, 43 Cal., 432, Laic Ramjewan v. Dal Koer (1897) 24 Cal., 406;
buresk Chandra Mukerjee v. Jyotirmoyee A.I.R 1930 P C , 284, 35
CWN, 61, Kuppuswami v Ranganatha AIR 1937 Mad, 835;
Bashist Narain Sahi v. bia Ramchandra (1933) 12 Pat, 18, Satya
Ranjan v. Annapurna Dasi A.I.R. 1929 Cal., 145.

(m) (1862 ) 9 M.I.A, 123

(/i) See sections 23 and 28 of the Transfer of Property Act.
Govindaraja Pillai v. Mangalam (1932) 63 M.L J., 911; Rameshwar
Kuer V. Sheo Lai Upadheya (1935) 14 Pat., 640.

:para. 759.]

GIFT OVER.

897

§ 759. A gift over is now regulated by section 131 of the Gift over.
Succession Act. The event upon which the defeasance must
operate cannot be an indefinite failure of male issue of the
^first or other taker (o) and section 132 provides that an
ulterior bequest of the kind contemplated by section 131
'Cannot take effect unless the condition is strictly fulfilled.

But a gift to A and if he should die without leaving male
issue then over, is a good gift, but where the testator attaches
»to the gift over a condition that it should be an estate in
tail male, the first absolute gift stands unaffected. While
successive life-estates can be created, a series of absolute
estates defeasible in succession on the happening of an
uncertain event cannot be construed as a succession of life-
estates, but will be void as an attempt to create an estate of
inheritance not recognised by law (p).

Where an estate absolute in terms is given to a donee and
an interest is created to take effect on the termination of the
prior interest, the first absolute estate is not cut down and
the subsequent interest fails {q). But where the gift to the
first taker is not a clear absolute gift, but the gift over is
-of the entire interest, the prior interest may be construed
to be a life-estate or a limited estate (r). It has been held
on the authority of Mahomed Shumsool v. Shewukram, that
an estate analogous to a Hindu widow’s estate may be granted
to a woman by will or by gift and that a contingent remainder
can be fastened upon it ( 5 ).

Where there is a bequest to one person and a bequest
of the same thing to another, if the prior bequest shall fail,
the second bequest shall take effect upon the failure of the
prior bequest although the failure may not have occurred
in the manner contemplated by the testator (^).

(o) Sarajabala Debi v. Jyotirmoyee (1931) 58*1, A., 270, 278,

59 Cal, 142, Lalit Mohan v. Chukkan Lai (1897) 24 I.A., 76, 24
Cal., 834, Raghunath Prasatl v. Deputy Commissioner (1929) 56 T.A«,

372, 4 Luck, 483; Anibalal v. Ambalal A.l.R. 1933 Bom., 34; Bai
Dhanalaxmi v. Han Prasad (1921) 45 Bom., 1038. See ills, to s. 131.

(p) Dhanlaxmi v. Hanprasad Vttamram (1921) 45 Bom., 1038
follg. Purna Shashi Bhattacharji v. Kalidhan Rat Chowdhurt (1911)

38 Cal., 603 P.C.; Ambalal v. Ambalal A.l.R. 1933 Bom., 34.

iq) 28 Hals. 1st ed., 771, 772; Mohan Lai v. Niranjan Das (1921)

2 Lah., 175; Partap Chand v. Mt. Makhani (1933) 14 Lah., 485.

(r) Pavani Subbamma v. Anumala Rama Naidu (1937) 1 M.LJ.,

268.

( 5 ) Maharaja of Kolhapur v. Sundaram Ayvar (1925 ) 48 Mad., 1,

125 follg. (1874) 2 I.A., 7; (1937) 1 M.LJ., 268 supra; Ram Bahadur
V. Jager Nath (1918) 3 P.L.J., 199 F.B.; but see Mussumut Bhagbutfi
V. Chowdry Bholanath (1875) 2 I. A., 2^.

(t) Sec. 129, Succession Act; Durga Pershad v. Raghunatidan Lai
(1914) 19 C.W.N., 439; Lakshmi Narasamma v. Ammanna (1936) 71
M.L.J., 845.

59

WILLS.

[chap. XXL

898

Life estate
with power
of alienation.

Impossible
or immoral
condition.

Cesser of
interest.

§ 760. A life estate can be given with a power of
alienation by will or gift inter vivos subject to the
proviso that to the extent to which the power is not exercised^
there is to be a gift over (m). Where there is an absolute
gift undei a will with a provision that if the donee does not
dispose of It, the property shall pass to another, it has been
held that the bequest is not void for repugnancy or un-
certainty (v). Where there is an absolute bequest to one
followed by a gift of what remains undisposed of at the death
of the first legatee, if the intention is to maintain the absolute
gift, the gift over is invalid {w) , If there is no such clear
intention, the absolute interest will be cut down to a life
interest simply or to an interest for life with a power of
disposition (aj). So too, a provision in a partition or settle-
ment that property which is allotted to a sharer to the extent
to which it is undisposed of by him shall go to another
sharer is valid (y). Where only a life interest passes from
the donor, when that is spent, he or his heir can lawfully
re-enter (z).

^ 760 A. A bequest upon an impossible condition or upon
a condition the fulfilment of which would be contrary to law
or morality would be void, such as a condition totally re-
straining marriage (a).

§ 761. A testator can validly make a bequest subject to
the condition that it shall cease to have effect on the happening
of a specified uncertain event but the event on which the de-
feasance or cesser of the estate is to take effect must fulfil

(m) Hara Kumari Dabi \ Mohirn Chandra Sarkar (1908) 12

C.W N., 412 V

(r) Thayalai Achi v Kannammal AIR 1935 Mad, 704, 6R
MLJ, 707, but see Bhupati Charan v Chandi Charan (1934) 39'
C.W N , 390 (gift over invalid)

(w) In re Stringers Estate, Shatv v Joncs-Ford (1877) 6 Ch , D 1;
In re Wilcock, Kay v Dewhurst (1898) 1 Ch. 95, In re
Hancock, Watson v Watson (1901) 1 Ch , 482, Ferry v Merritt L R
18 Eq , 152, Theobald on Wills, 495, see Govindbhai v Dahyabhai
A.I R 1936 Bom , 201

(jc) Constable v Bull 64 ER, 589, In re Sanford, Sanford v.
Sanford (1901) 1 Ch , 939, In re Founder 56 LJ (CA.), 113;
Herring v Herring (1881) 14 Ch D., 263, Manumallaswami v.
Narayanaswami (1932) 63 M L,J., 107.

iy) Ram Nirunjan Singh v Frayag Singh (1882) 8 Cal, 138;
Kanti Chandra Mukerji v. Alii Nabi (1911) 33 All, 414; Muthuraman
Chettiar v Fonnuswamy (1915) 29 MLJ., 214; Bageshar Rai v.
Mahadei (1924) 46 All, 525. See Uthe Amma v. Mam Amma (1935)
68 M L.J , 372 ; Parkash v Chandar Parkash AIR. 1932 Lah., 215.

iz) (1879) 5 I A., 138, 4 Cal., 23 infra, (1899) 16 I.A., 29, 16
Cal., 383 supra, Malireddi Narayanaswami v. Kondapalli Gopalaswamy
(1937 ) 46 M.L.W., 258.

(a) Sections 126 and 127 of the Succession Act; Ram Sarup v.-
Bela (1884) 11 I. A., 44, 6 All., 313.

PARAS, 761-762.] DIRECTIONS FOR ACCUMULATIONS.

899

the same condition of legality as a condition precedent (6).

On the happening of a condition subsequent the estate
granted reverts to the testator’s heirs.

§ 762. The law regarding directions to accumulate is Accumulations,
now laid down by section 17 of the Transfer of Property Act
and section 117 of the Indian Succession Act which respect-
ively apply to transfers and bequests by Hindus.

Section 117: (1) Where the terms of a will direct that the
income arising from any property shall be accumulated either
wholly or in part during any period longer than a period of
eighteen years from the death of the testator, such direction
shall, save as hereinafter provided, be void to the extent to
which the period during which the accumulation is directed
exceeds the aforesaid period, and at the end of such period
of eighteen years, the property and the income thereof shall
be disposed of as if the period during which the accumulation
has been directed to be made had elapsed.

(2) This section shall not affect any direction for
accumulation for the purpose of — (i) the payment of the
debts of the testator or any other person taking any interest
under the will, or (ii) the provision of portions for children
or remoter issue of the testator or of any other person taking
any interests under the will, or (iii) the preservation or
maintenance of any property bequeathed; and such direction
may be made accordingly (c).

Before this provision, it was not incompetent for a Hindu»
within proper limits, to direct an accumulation of the income
of a property which vested in his executor or trustee. Con-
flicting opinions were expressed as to the period during which
accumulations might be made {d) .

ib) Secs. 134, 135 Sue. Act; Bhoobun Mohini v. Hurnsh Chunder
(1878) 5 I A , 138, 4 Cal , 23 As to where a bequest^ceases to have
effect unless the legatee does certain act and the legatee makes its
performance impossible, see secs 136 and 137

(r) See the illustrations to Section 117. Bissonauth v. Bama^
soondery (1867) 12 M.I.A., 41 (accumulations follow capital). For
the law prior to the Act Sonatun By sack v. Juggut Soondery (1859)

8 M T.A., 66, Shookmoy v. Monohari (1885) 12 I.A., 103, 11 Cal.,
684; Benode Behan v. Nistanm (1905 ) 32 I A., 193, 33 Cal., 180;
Amrito Lai v. Surnoymoni (1898) 25 Cal, 662 on appeal 27 I.A.,
128, 27 Cal., 9%, Brama Mayi v. Jageschandra (1871) 8 B.L.R., 400;
Mokoondolal v. Ganesh Chunder (1875) 1 Cal., 104; Cally Nath
V. Chander Nath (1882) 8 Cal, 378; Nafar Chandra v. Ratan (1910)
15 C W.N., 66 (accumulation for marriage expenses valid) ; Watkins
V. Admr. GenL, Bengal (1920) 47 Cal., 88.

id) Amrito Loll v. Surnomoyee (1897) 24 Cal., 589; Rajendra Lull
V, Rajcoomari (1906) 34 Cal., 5; Nafar Chandra v. Ratan Mala (1910)
15 C.W.N., 66; Ram Lai v. Bidhumukhi (1920) 47 Cal., 76; contra.
Amrito Lai Dutt v. Surnomani Dasi (1898) 25 Cal., 662, 690-1;,
Raneemoney Dasi v, Premmoney (1905) 9 C.W.N., 1033, 1043.

900

WILLS.

[chap. XXI,

Powers of
appointmeat.

A direction to accumulate income for charitable purposes
is not illegal in Hindu law (e). While section 18 of the
Transfer of Property Act makes section 17 thereof inapplicable
to gifts inter vivos for religious or charitable purposes, and
while the language of sec. 114 of the Succession Act makes it
inapplicable to charities, section 117 on its language would,
in the absence of any exception, seem to apply to accumula-
tions in connection with a bequest for religious or charitable
purposes.

§ 763. The Privy Council sanctioned a great extension
of testamentary powers, by recognising the right of a testator
to grant a power of appointment to a person named in his
will, by which the final devolution of his estate should be
regulated at the termination of interests previously
created (/). In Bai Motivahoo v. Bai Marnoobai, the will
directed that the whole of the immovable property of the
testator should be constituted into a trust, the income of
which should be applied by his trustees for the
use of his wife Motivahoo, his daughter Mamoo, and
the children of his daughter for their lives. ‘‘Afterwards the
heirs of the said children are duly to apportion and receive
this property. But should there be no children born of the
womb of my daughter Mamoo, then after the death of Mamoo
and of my wife Motivahoo this trust is to become void, and
this property is to be delivered to such persons as my
daughter Mamoo may direct it to be delivered by making
her will.”

The Judicial Committee affirmed the validity of this
disposition. They said (p. 105) : “It appears to them to follow,
from the first taker being allowed to have only a life-interest,
that her possession is sufficient to complete the executory
bequest which follows the gift for life. The result of the
decisions is that, according to settled law, if the testator here
had himself designated the person who was to take the
property in the event of Mamoo dying childless, the bequest

(e) Rajendra Lall v. Raj Cootnari (1907) 34 Cal, 5; Ramanadhan
Chettiar v. Vava Levvai (1911) 34 Mad, 12 affirmed in (1917) 44 I. A.,
21, 29, 40 Mad , 116.

(/) Bai Motivahoo v. Bai Mamoohai (1897) 24 I.A., 93, 102, 21 Bom.,
709, affg. 19 Bom., 647; and Javerbhai v. Kablibai (1891) 15 Bom.,
320, on appeal 16 Bom., 492; Upendra Lai v. Hemchundra (1898)
25 Cal., 405; Yethirajulu v Mukiintha (1905) 28 Mad., 363;
Brij Lai v. Suraj Bikram Singh (1912) 39 I.A., 150, 34 All., 405;
Mahimchandra Satkar v. Harakumari Dassee (1915) 42 Cal., 561;
Shirinbai v. Ratanbai (1921) 48 I A., 69, 45 Bom., 711; Admr, Genl,
of Bengal v. Balkissen Misser (1924) 51 Cal., 953; Suraj Prasad v.
Mt, Guiab Dei A.l.R. 1937 AIL, 197; Kali Prasad Gope v. Ram Golam
Sahu A.I.R. 1937 Pat., 163.

PARA. 763.] GRANT OF POWER OF APPOINTMENT.

901

would be good. The remaining question is, whether his
substituting Mamoo and giving her power to designate the
person by her will is contrary to any principle of Hindu law.
There is an analogy to it in the law of adoption. A man may
by will authorise his widow to adopt a son to him, to do
what he had power to do himself, and although there is
here a strong religious objfigation, their Lordships think
that the law as to adoption shows that such a power as
that now in question is not contrary to any principle of
Hindu law. Further, they think that the reasons which have
led to a testamentary power becoming part of the Hindu law
are applicable to this power, and that it is their duty to hold
it to be valid. But whilst saying this, they think they ought
also to say that in their opinion the English law of powers is
not to be applied generally to Hindu wills.” While they
made a declaration that the gifts to such persons as the donee
of the power may appoint are valid gifts, they added, “that
this Court cannot, and doth not, determine upon whom the
property subject to such powers respectively, will devolve,
if, and so far as, such powers, are not validly exercised.”

Now, as a result of the alteration of the rule of Hindu law
by legislation, the objects of the power need not necessarily
be persons in existence at the death of the testator, but may
be such unborn persons as could take under a gift within
the limits of the rule against perpetuity.

The power of appointment by itself does not confer
upon the donee any beneficial interest in the estate (g).
In Brij Lai v. Suraj Bikram^ it was held that a direction by a
Hindu testator that his nephew’s widow should remain in
possession of his estate with the power of appoint-
ing an heir, either in her lifetime or by will, did
not amount to an absolute gift thereof (/i) . But the case may
be different where an estate is given to the donee of the
power. In Narsingh Rao v. Mahalakshmamma^ a testator
gave his wife a widow’s estate and provided that if no son
were born to his disinherited son within sixteen years, his
widow should have the power to appoint as ‘owner and re-
presentative and heir,’ her daughter or her daughter’s son. It
was held that in default of the exercise of the power con-
ferred upon the widow to bequeath the estate to her daughter
or daughter’s son, it was intended to descend to her heirs (i).

(g) (1892) 16 Bom., 492 supra.

(A) (1912) 39 LA.. 150, 34 AH.. 405.

(i) (1928) 55 I.A., 180, 194, 50 AIL, 375; Kandarpamohun v.
Akshaychandra (1934) 61 Cal., 106.

902

WILLS.

[CH\P. XXI,

Vesting of
legacies.

Where the power of appointment is so given as to be itself
an invalid disposition, there will be an intestacy (j) .

§ 764. The rules as to vesting of a legacy under a Hindu
will are now laid down in sections 104 and 119 of the Suc-
cession Act.

Section 104. If a legacy is given in general terms, without
specifying the time when it is to be paid, the legatee has a
\ested interest in it from the day of the death of the
testator, and, if he dies without having received it, it shall
pass to his representatives (A:).

Section 119 Where by the terms of a bequest the
legatee is not entitled to immediate possession of the thing
bequeathed, a right to receive it at the proper time shall,
unless a contrary intention appears by the will, become vested
in the legatee on the testator’s death, and shall pass to the
legatee’s representatives if he dies before that time and without
having received the legacy, and in such cases the legacy is
from the testator’s death said to be vested in interest.

Explanation. An intention that a legacy to any peison
shall not become vested in interest in him is not to be in-
ferred merely from a provision whereby the payment or
possession of the thing bequeathed is postponed, or wheieby
a prior interest therein is bequeathed to some other peison,
or wheieb) the income arising from the fund bequeathed is
directed to be accumulated until the time of payment ai lives,
or from a provision that, if a particular event shall happen,
the legacy shall go over to another person (/).

In Bickerstetli^ v Shanu. the Privy Council held that the
established rule for construing devises of real estate is that
they aie to be held to be vested unless a condition precedent
to the vesting*’ is expressed with reasonable clearness ( m ) .

(;) Sivasankara v. Soobramania (1908) 31 Mad, 517, affirmed
in (1913) 17 C\^ N , 188, PC

(A) Where the bequest is to the child or any lineal descendant
of the testator and the legatee dies in the testator’s lifetime the
bequest does not lapse but passes to any lineal descendant of the
legatee who ‘survives the testator, according to section 109 of the
Succession Act which now applies to Hindus

(/) See the illustrations to section 119 of the Indian Succession
Act.

(m) [19361 AC, 290, AIR 1936 PC, 123, approving Duifield v.
Duffield (1829 ) 4 ER, 1335, 1358, Broivne v. Moody [19361 A.C.
635, 645, !n re Blackwell (1926)1 Ch , 223, Bhagabati Barmanya v.
Kalicharan (1911) 38 I A., 54, 38 Cal, 468, Viswanadhan v.
Anjaneyelu A.I.R. 1935 Mad, 865, Bern Madho v. Bhagwan Prasad
(1911) 33 All, 558. See as to presumption in favour of early vesting,
Sifton V. Si f ton [19381 AIL, E R , 435 P.C.

PARAS. 765-766.] RESTRICTIONS ON ESTATE GIVEN.

903

§ 765. Where an absolute estate is given, any restric-
tions on the powers of transfer, partition, or enjoyment which Repugnant
the law annexes to the estate, will be rejected as re- restrictions,
pugnant (n). Partial restrictions on alienations and parti-
tions may not be regarded as repugnant (o) . The question
is now governed by sec. 138 of the Succession Act (p).

§ 766. Two or more dfonees taking under a bequest
(take as tenants in common (^).

The principle of joint tenancy is unknown to Hindu law
-except in the case of joint property of an undivided Hindu
iamily (r). In Baku Ram v. Rajendra Bahsh where a grant Presumption

was made to two undivided brothers it was held that they

1 . V rr.1 . / . f in common,

took it as tenants in common (5). Ihis prima facie inler-

ence can be displaced by express words or other sufficient

indication making the estate granted a joint estate with

lienelit of survivorship (/). A bequest to two daughter’s

in) Tagore case (1872) LA. Siipp. Vol. 47, 65, 9 B.L.R., 395;

Ashutosh Dutt V. Doorga Churn (1880) 6 I.A., 182, 5 Cal., 438; Rai
Kishore v. Debendranath (1888) 15 I.A., 37, 15 Cal., 409; Lalit Mohun
V. Chukkun Lai (1897) 24 I. A., 76, 24 Cal., 834; Raghunath Prasad
’v. Deputy Commissioner (1929) 56 I.A., 372, 4 Luck., 483; Sarajabala
Dossy V Jyotir Moyee (1931) 58 LA., 270, 59 Cal, 142;

Rameshwar Baksh v. Balraj Kaur A.l.R. 1935 P.C., 187, 40 C.W.N , 8;

Mookondo Loll v Gonesh (1876) 1 Cal., 104, Callynath v. Chandranath
(1882) 8 Cal., 378, Rameswar v. Lakshmi Prasad (1904) 31 Cal., Ill;

Gosavi Shivgar v. Rivett Carnac (1899) 13 Bom., 463; Husseinbhoy
V. Ahmedboy (1902) 26 Bom, 319; Ram Kaur v. Atma Singh (1927)

R Lah., 181; IJmrao Singh v. Baideo Singh (1933) 14 Lah., 353.

(o) Muhammad Raza v. Abbas Bandi Bibi (1932) 59 LA., 236,

A.LR. 1932 P.C, 158, 7 Luck., 257, following In re Mackay (1875)

20 Eq , 186 and Gill v. Pearson 6 East., 173.

(p) Corresponding to sec. 125 of the Act of 1865, Bai Bapi v.

Jamnadas (1898) 22 Bom., 774; Lola Ramjewan v. Drl Koer (1899)

24 Cal., 406, Kedar Nath v. Gaya Nath A.I R. 1930 Cal., 731.

(q) Jogeswar Narain Deo v. Ramchandra Dutt (1896) 23 LA.,

R7, 23 Cal, 670. The head note that the baquest is to the
daughter and the son is wrong; it is to the wife and the si>n.

Janakiram v Nagamony (1926 ) 49 Mad., 98; Bahu Ram v. Rajendra
Baksh (1933) 60 lA, 95, 8 Luck, 121, overruling Vydinada v.

Nagarnmal (1888) 11 Mad., 258; Fani Bhushan Saha v. Fulkumari
.Dasi A.LR. 1937 Cal., 1.

(r) Bahu Rani v. Rajendra Baksh (1933) 60 LA., 95, 8 Luck.,

121 .

( 5 ) (1933) 60 LA., 95 supra, Bai Diwali v. Patel Bechardas (1902)

26 Bom., 445; Kishori Dubain v. Mundra (1911) 33 All., 665; Mt, ho
V. Mt, Rukmani (1927) 8 Lah, 219; Gopi v. Jaldara (1911) 33 All.,

41 (daughters) , Ram Piari v. Krishna (1921) 43 All., 600; Janakiram
V. Nagamony (1926) 49 Mad., 98; Venkata Knshnavya v. Madamma
A.LR. 1928 Mad., 926 (devise to daughter and sister’s son as intended
son-in-law — take as tenants m common) ; Krishnaswami v. Avayamhal
A.LR. 1933 Mad., 204; Fani Bhushan Saha v. Fulkumari Debt A.LR.

1937 Cal.. 1.

it) Yethirajulu v. Mukunthu (1905) 28 Mad., 363, 373; see also
Bissonauth v. Bamasoonderry (1867) 12 M.LA., 41.

90l

WILLS.

[chap. XXI^

Gift of
income.

No intention
to dispose
of corpus.

Attempt to
keep estate
in suspense.

sons by the maternal grandfather even where they were
members of an undivided family was held to constitute thewi
tenants in common (u).

§ 767. Where a gift is made of the income, but the
estate given is not in terms limited to the lives of the bene-
ficiaries, nor is any line of descent provided after their
deaths, it is an absolute gift of^’the estate itself ft;).

§ 768. A Hindu testator is not allowed to tie up his pio-
perty indefinitely or in perpetuity so as to prevent its devolu-
tion in accordance with law. Accordingly, where there is no
intention to dispose of the estate itself but to give only the
profits for the benefit of a man's descendants in perpetuity,
the bequest is invalid, even though coupled with the main-
tenance of a religious service (i^;) . The property which is
undisposed of devolves upon the heir.

It is also not open to the testatoi to make his estate-
remain in suspense without an owner for any time
Accordingly while a testator can \alidly make a bequest
to take effect in futuro, if there is no present prior estate,
the heir will take it until the interest created conies
into operation f.xL Where a testator appointed his widow
as executrix but made no bequest iii favour of his
sons and merely gave directions foi the management of
the estate and for the postponement of partition to a parti-
cular date, it was held that the property vested in the widow
as executrix and that the sons took the property as on an
intestacy (y). Where a Hindu widow was directed by her
husband’s will to adopt a boy and executors weie appointed

(u) Seshu Reddi \ Malia Reddi AIR. 1935 Mad, 852 V l)equest lo
two daughters has however been held to constitute them joint tenants;
Suraj Prasad y*Mt. Gulab Debt A.I R. 1937 All, 197

U') Sec. 172 of the Indian Succession Act gives effect to this
principle. Madhavrao \ Balabhai (1927) 55 I A, 74, 52 Bom, 176;
Browne v Moody [1936] A.C , 635, 645, Ganesh Chunder v. Lai
Behary (1936) 63 I A , 448, 454, Mnnnox \ Greener (1873) L R., 14,
Eq., 456, Margaret Fernandez v Solina Coelho AIR 1925 Mad, 418,
420, Shookmoy Chandradas v. Monohari Dassey (1885) 12 I A., 103,
11 Cdl. 684, 692, affirming (1881) 7 Cal, 269, Admr. Genl of
Bengal v. Hughes (1912) 40 Cal, 192, 214, Hemaangini v Nobin-
chand Ghosh (1882) 8 Cal, 788, Mandakini Debt Arunabala Debi
(1906) 3 CLJ, 515, 519.

(w) Shookmoy Chandra v. Monoharri Dassi (1885) 12 I. A., 103,
11 Cal., 684 For a case where the gift to chanties was severable
from the tying up of the property for the benefit of the testator’s-
relations, even when the latter motive was dominant, see Kayasthae.
Pathasala v. Mt, Bhagwati (1936) 64 I. A., 5.

(x) Amulya Charan Seal v. Kali Das Sen (1905) 32 Cal., 861.

(y) Poorendra Nath Sen v. Neman gini Dasi (1909) 36 Cal., 75^,

PARAS. 768-771,] RULES OF CONSTRUCTION.

905

to be in possession of the properties during the minority of
the adopted boy and the widow refused to adopt, it was
held that the widow was entitled to the properties as on
intestacy (z).

§ 769. A bequest need not be in express terms but may
be by implication. But it must be a necessary inference to
be drawn from the expressions used by the testator (o). To
constitute a gift by implication, there must be a reasonable
degree of certainty as to the persons intended to take and
the nature of the estate which they were intended to take {b)»

§ 770. Where a testator makes a bequest to a person
whom he erroneously describes as the adopted son, the in-
validity of the adoption would not make the gift invalid,
unless on the construction of the will it appears that the
intention of the testator is that a valid adoption is either a
condition of or the motive for the bequest (c). Similarly
where a testator directed that his nephew’s son should be
adopted by his widow and bequeathed to him his residuary
estate and his widow, having refused to adopt him, died while
he was still a minor, it was held that the legatee not having
been adopted could not take under the will (d).

§ 771. The rules of construction of wills as stated by
Lord Wensleydale in Roddy v. Fitzgerald (e) have been
approved by the Privy Council in Venkatadri Appa Rao v.
Parthasarathi Appa Rao, “The first duty of the Court
expounding the will is to ascertain what is the meaning of
the words used by the testator. It is very often said that the
intention of the testator is to be the guide, but that expression
is capable of being misunderstood and may lead lo a specula-

U) V aradanarayana Ayyangar v. Vengu Ammal (1938) 47 M.L.W,,
217 See Jagannatha v Kunja Behan Deo (1921) 48 I. A.. 482, 44
Mad.. 733.

(flf) Bissonaiith Chunder v. Bamasoondery (1867) 12 M.I.A., 41,

60.

ib) Anand Rao v. Admr. General, Bombay (1896) 20 Bom., 450;
Satish Chandra v. JSdadri Nath (1934) 39 C.W.N., 237.

(c) See ante §216. Nidhoomoni Debya v, Saroda Pershad (1876)
3 I A , 253. 26 W R , 91 {persona designata) ; Subbarayer v. Subbammal
(1901) 27 T.A , 162, 24 Mad, 414 {persona designata) ; Fanindra
Deb V. Rajeswar (1885) 12 I. A., 72, 11 Cal., 463; Lali v. Murlidhar
(1906 ) 33 I A., 97, 28 All., 488; Abbu v. Kuppammal (1893) 16
Mad., 335, Patel Vandravan v. Patel Mandal (1891) 15 Bom., 565,
573; Lalta Prasad v. Salig Ram (1909) 31 AIL, 5; Navaneethakrishna
V. Collector of Tinnevelly (1935) 69 M.L.J., 632,

(d) Karamsi Madhoivji v. Karsandas Natya (1899) 23 Bom., 271
P.C. See section 128 of the Succession Act and its illustrations and
section 26 of the Transfer of Property Act.

(e) (1858) 6 H.L.C., 823; Gordon v. Gordon (1871) 5 H.L.C.,
254, 284; Abbott v. Middleton (1858) 7 H.L.C., 65, 89.

Bequest by
implication.

Persona

Designator

Rules of
constnictioB.

906

WILLS.

[chap. XXI,

lion as to what the testator may be supposed to have intended
to write, whereas the only and proper inquiry is, what is the
meaning of that which he has actually written. That which he
has written is to be construed by every part being taken into
consideration according to its grammatical construction and
the ordinary acceptation of the words used, with the assist-
ance of such parol evidence of the surrounding circum-
stances as is admissible, to place the Court in the position
of the testator” (/).

As an aid and solely as an aid to arriving at a

right construction of a particular will and to ascertain

the meaning of the language used by the particular testator,
a Court is entitled and bound to bear in mind the surround-
ing circumstances, the position of the testator, his family
relationships, the probability that he would use words in a
particular sense and his social and cultural environment. In
other words, the Court is entitled to put itself into the

testator’s arm-chair (g).

The will in the first instance is to be construed apart

from the question of the validity of its provisions ih) ,

The meaning of anv clause in a ^\lll is to be collected
from the entire instrument, and all its parts are to be con-
strued with reference to each other (i).

The intention of the testator shall not be set aside because
it cannot take effect to the full extent, but effect is to be
given to It as far as possible (/).

if) (1925) 52 I A., 214, 228-9, 48 Mad, 312, 329; Soorjeemoney
Dossee v. Dino^undoo Mullick (1857) 6 MIA, 526, 551, Bhoobun
Morec V. Ram Kishore (1865) 10 MIA. 308, Lahshmibai v Ganpat
(1867) 4 Bom H C. (OCJ ), 151, Lallubai v. ManLuvarbai (1879)

2 Bom, 388, 408, Murari Lai v. Kiindanlal (1892) 13 All, 339;
Somasundara v Ganga Bissen (1905) 28 Mad, 386, Cheda Lai v.
Gobind Ram (1908) 30 All, 455, Basant Kumar Basu \ Ramshankar
Ray (1932) 59 Cal, 859, Sasanha Bhiichan v. Gopi Ballav AIR.
1935 Cal, 716

(g) Venkata Narasimha v Parthasarathv (1914) 41 I A, 51, 71,
37 Mad, 199, 221, 222, Nathu Ramu v. Gangabai 42 C W N., 1082,
A I R 1938 P C , 228

ih) 28 Hals. 1st ed , 667. In the Tagore case, it was laid down
that ‘the true mode of construing a will is to consider it as expressing
in all its parts, whether consistent with law or not, the intention of
the testator, and to determine upon a reading of the whole will,
whether, assuming the limitations therein mentioned to take effect,
an interest claimed under it was intended under the circumstances
to be conferred’ I A , Supp , Vol. 47, 79.

(/) Section 82 of the Succession Act See the rules regarding
the construction of wills laid down in sections 74-90 of the Succession
Act, which apply to Hindus. Dinbai v. N usserwanji (1922) 49 I A., 323,
326, 49 Cal, 1005, 1008.

(/) Section 87 of the Succession Act, which applies to Hindu wills.

PARAS. 772-773.] RULES OF CONSTRUCTION.

907

§ 772. Another general principle applicable to wills and
to gifts inter vivos is that “a benignant construction is to be
used, and that if the real meaning of the document can be
reasonably ascertained from the language used, though that
language be ungrammatical or untechnical, or mistaken as to
name or description, or in any other manner incorrect, pro-
vided it sufficiently indicates what was meant, that meaning
shall be enforced to the extent and in the form which the
law allows” {k).

Accordingly if the gift conferred an estate upon a man with
words imperfectly describing the kind of inheritance but
showing that it was intended that he should have an estate
of inheritance, the language would be read as conferring an
estate inheritable as the law directs (/).

If an estate were given to a man simply without
express words of inheritance, it would, in the absence of a
conflicting context, carry by Hindu law an estate of inherit-
ance. If there were added to such a gift an imperfect descrip-
tion of it as a gift of inheritance, not excluding the inheritance
imposed by the law, an estate of inheritance would
pass (ni),

§ 773. The Judicial Committee laid down in Lalit Mohun
Singh Roy v. Chukkun Lai Roy^ “There are two cardinal prin-
ciples in the construction of wills, deeds and other documents.
The first is that clear and unambiguous dispositive words are
not to be controlled or qualified by any general expression of
intention. The second is, to use Lord Denman’s language,
that technical words or words of known legal import must
have their legal effect even though the testator uses inconsis-
tent words, unless those inconsistent words are of such a
nature as to make it perfectly clear that the testator did not
mean to use the technical terms in their proper sense” (nL

The words, ‘become owner {malik) of all my estate and
properties’ would, unless the context indicated a different
meaning, be sufficient to indicate a heritable and alienable
estate even without the words, ‘enjoy with son, grandson, and
so on in succession,’ which latter words are frequently used in

ik) The Tagore case (1872) LA. Supp. Vol. 47, 65. See also
Venkatadri Appa Rao v. Parthasarathy Appa Rao (1925) 52 I.A., 214, 48
Mad., 312.

(/) (1872) LA. Supp. Vol. 47, 65 supra,

(m) LA. Supp. Vol. 47, 65 supra. Damodardas v. Tapidas (1898)
25 LA., 126, 22 Bom., 833; Vallabhdas v. Gordhandas (1890) 14
Bom., 360; Rameshwar v. Lachnti (1904) 31 Cal., 111.

(n) (1897) 24 LA., 76, 85, 24 Cal., 834.

No express
words of
inheritance
necessary.

908

Construction
of gifts to
women.

GIFTS TO WOMEN. [CHAP. XXI^

Hindu wills and have acquired the force of technical words
conveying an heritable and alienable estate (o).

§ 774. Whether a Hindu woman takes under a gift or
bequest the same estate as a Hindu male does, when there
are no words conferring an absolute estate and no express
power of alienation, has been the subject of considerable
controversy and fluctuation of opinion. It may now be
taken as settled that there is no such difference, as was once
supposed, between a gift to a male and a gift to a female. The
later rulings of the Privy Council as well as the Indian Courts
have generally adopted the rule of construction that the fact
that the donee is a woman does not make the gift any the
less an absolute gift where the words would be sufficient to
convey an absolute estate to a male (p). In Jagmohan Singh
V. Sri Nath (q) referring to the apparent conflict between
the decisions in Ramachandra Rao v. Ramachandra Rao (r)
and Bhaidas Shivdas v. Bhai Ghulam ( 5 ), the Privy Council
said that the remarks in the former case were not
intended in any way to qualify the judgment in Bhaidas
Shivdas V. Bhai Gulab. Notwithstanding the clear pro-
nouncement in the later cases, the rule long ago expressed m
unqualified terms in Mahomed Shumsool v. Shewak Ram it)

(o) (1897) 24 Cal, 834, 849 supra, Surajmani v. Rabinath Ojha
(1908 ) 35 I A , 17, 30 All, 84, Pratap Singh v Agarsingji (1919)
46 I A,, 97, 43 Bom, 778, Ram ISarayan Singh v Ram Saranlal (1919)
46 I A , 88, 46 Cal , 683. Regarding wills in vernacular languages, see^
Rajendra Prasad v. Gopaf (1930) 57 I A , 296, 10 Pat , 187.

ip) Surajmani v Rabi Nath Ojha (1908) 35 I A, 17, 30'

All , 84 (wife and daiighter-in-law, absolute) , Fatechand v. Rupechand
(1916) 43 I A., Iip3, 38 All, 446 (bequest to wife — absolute); Bhaidas
Shivdas V Bai Gulab (1922) 49 I A , 1, 46 Bom, 153 (gift to widow —
absolute), Sasiman v. Shib Narayan (1922) 49 I A., 25, 1 Pat, 305
Oiequest to widow— absolute) , Sudhamoni Das v. Surat Lai Das
(1923) 45 MLJ, 247 P.C , affg 25 C W N., 527, Hitendra Singh v.
Maharaja of Darbhanga (1928) 55 I.A., 197, 7 Pat, 500 (bequest to
wife, absolute estate) , Bishnath Prasad v Chandree Prasad Kiimari
(1933) 60 I A, 56, 55 All, 61 (gift to daughter-in-law — absolute),
Saraju Bala v. Jyotir Moyee (1931) 58 LA , 270, 59 Cal. 142
(daughter — absolute), Rameshwar v. Balraj (1935) 40 C.W N., B

PC, Biprados Goswami v, Sadhanchandra Banerji (1929) 56 Cal ^
790 ; Pramathanath Sarkar v. Suprakash Ghosh ( 1931 ) 58 Cal , 77 ;
Provabati Debya v. Sarojini Devi A.I.R. 1933 Cal , 72, 36 C W N , 1015,
Krishnaswami v Ramachandra (1934) 67 MLJ, 821 (device to-

widow and son in same words — absolute estate) , Kanhya Lai v Mt,
Hira Debt (1936) 15 Pat. 151.

iq) (1930) 57 I A., 291, AIR, 1930 PC, 253, Shivajypa v.
Rudrava (1933) 57 Bom, 1, 17.

(r) (1922) 49 I A., 129, 45 Mad, 320.

(s) (1922 ) 49 I A., 1, 46 Bom, 153.

{t) (1875) 2 I A., 7, 14 B L.R., 226 (bequest to daughter-in-law—
limited estate); Rabuttv v. Sibchunder (1854) 6 M.I.A., 1; Radha
Prasad v. Ranee Mam (1908) 35 LA., 118, 35 Cal., 896.

PARAS. 774-776.]

WILLS.

909

that there is a presumption that the donor intends, where the
^onee is a woman, to take only a life estate, which has been
responsible for considerable uncertainty in the construction
•of gifts and wills, has in some cases been relied upon
and followed (a).

§ 775. Now sec. 95 of the, Indian Succession Act applies
to all wills made by Hindus and it lays down a rule of
construction as to a gift simpliciter, which is uniformly
applicable to all cases whether the gift is to a female or to
a male: Where property is bequeathed to any person, he
is entitled to the whole interest of the testator therein, unless
it appears from the will that only a restricted interest was
intended for him.

§ 776. It has been held in some cases that the presump-
tion of English law against intestacy applies to the construe’
tion of Hindu wills (t;). That presumption, of course, applies
•only in doubtful cases. The English rule is that if
on a fair and reasonable construction of the will, there is
ground for considering that the testator did not intend to
die intestate, then only the Court should act on that pre-
sumption in construing doubtful expressions in the will. But
it will not give an unnatural meaning to a word or construe
plain words otherwise than in accordance with their plain
meaning. In any case, it must be shown distinctly that the
words in the will are sufficient to amount to a gift of the
property, expressly or by implication, to some particular
donee {w).

(tt) Basant Kumar Basu v. Ram Shankar Roy (1932) 59 Cal., 859;
Annada Sundari v. Ratan Ram A.I.R. 1934 Cal., 370; Mangamma v.
Dorayya (1936) 71 688, (1937) Mad., 335; Mohan Singh v.

Cur Devi (1931) 12 Lah., 767; Ashurfi Singh v. Biseswar (1922) 1
Pat., 295. The observation in Mahomed Shumsul v. Shewak Ram was
made at a time when it was thought that under the Hindu law in the
case of immovable property given or devised by husband to his wife,
she had no power of alienation unless it was conferred in express
terms. The Judicial Committee has recently laid down that that pro-
position is not sound: Shalig Ram v. Charanjit Lai (1930) 57 I.A.,
282, 289. A fortiori there is no reason for its retention in the case of
other women.

(v) Ellokassee Dossee v. Durponarain (1880) 5 Cal., 59, 63;
Cheda Lai v. Gobind Ram (1908) 30 All., 455, 458; Seshayya v.
Narasamma (1899) 22 Mad., 357, 361; Kanakammal v. Bakthavatsalu
<1923) 44 M.L.J., 23, 26.

{w) 28 Hals. Ist ed., pp. 665-666.

Bequest
without
words of
limitation.

Presumption

against

intestacy.

910

WILLS.

[chap. XXL

Englibh
rules of
construction
inapplicable.

Vesting in
executor.

§ 777. One principle which has often been reiterated is
that the Court will not apply English rules of construction
to Hindu wills, whether written in the vernacular
oi in English. Referring to the English rules of construc-
tion, Lord Moulton observed: “Such rules are purely an
English product, based on English necessities and English
habits of thought, and there would be no justification in
taking them as our guide in case of Indian wills’' (a.). Some
of the rules which are not artificial or peculiar to the English
system have of course been applied to the construction of
Hindu wills as being common to both the systems.

§ 778. The executor of a deceased Hindu is his legal
repiesentative for all purposes and all the property of
the deceased person vests in him as such except such
property of the deceased which would otherwise pass
by survivoiship to some other person (y). In Venkata
Subbamma \ Rarnayya^ the Privy Council held that the
estate of the testator vests in the executor, il he accepts
office, from the date of the testator's death and he has the
same poweis as an executor under the Probate and Adminis-
tration Act. 1881, even though probate has not been
obtained (z).

The interest of the executor however in the property of
the deceased is only in right of the deceased as his repre-
sentative (a). An executor as such is not a trustee in the
strict sense; but in respect of properties undisposed of or
not validly disposed of, he is a bare trustee foi the persons
entitled to them on such intestacv (b). He will be a trustee
in respect of legacies to which he has assented even before
the estate has been administered. Where it has been

(r) Venkata Narasimha v Parthasarathy (1914) 41 1 A , 51, 71, 37
Mad, 199, Norendra v Kamalbasim (1896) 23 I A , 18, 26, per Wilson,
J , in Ramlal Sett v. Kanai Lai (1886) 12 Cal., 663, 678, approved by

the Privy Council in Bhagabati v Kali Charan (1911) 38 I A , 54, 64,.

38 Cal., 468, Skinner \ Naunihal Singh (1913) 40 I. A., 105, 114, 115;
Rajendra Prasad Bose v Gopal Prasad Sen (1931) 57 I.A , 296, 303,
10 Pat, 187, Indira Ram Ghose v Akhoy Kumar Ghose (1933) .59

I A , 419, 430, 60 Cal , 554, Din Tarim v Krishna Gopal (1909 ) 36

Cal., 149, 156

iy) Indian Succession Act, sec 211, Sir Mahomed Yusuf v.
Hargovandas (1923) 47 Bom, 231, Ganapathi v Sivamalai (1913)
36 Mad, 575, Chidambara v Krishnaswami (1916) 39 Mad., 365.

iz) (1932) 59 I A, 112, 55 Mad, 443, affg. (1926) 49 Mad, 261
F B

(а) In re Davis Evans v. Moore (1891) 3 Ch., 119, 124.

(б) Kurrutelain v Abbasi (1906) 32 I.A., 244, 33 Cal., 116.

PARAS. 778-779.]

PROBATE.

91L

fully administered, he will be a trustee of the residue of the
property for the persons beneficially entitled (c).

§ 779. No right as executor or legatee can be established
in any Court unless probate of the will or letters of
administration with the will annexed are granted in the case
of wills made by any Hindu, Buddhist, Sikh, or Jaina, within
the territories and limits to whifih the Hindu Wills Act, 1870,
applied. But in respect of wills made outside such territories
and limits, neither probate nor letters of administration with
the will annexed are compulsory except as to immovable
property within those territories and limits (d). Accordingly
it has been held that probate need be taken only in respect
of immovable properties situate within those territories or
limits; and a suit for a pecuniary legacy unconnected
with any such property dealt with by the will is maintainable
without obtaining a probate (e).

A probate is conclusive as to the due execution of the
will and the appointment of the executor. It decides nothing
as to the title of the testator to the properties disposed of
or as to the construction of the will and the validity of its
provisions (/). The purposes for which probate or letters
of administration are conclusive are stated in sec. 273 of the
Indian Succession Act. It is conclusive as to the represent-
ative title of the executor against all debtors of the deceased
and all persons holding property which belonged to him and

(r) Nand Kishore v. Pasiipati Nath (1928> 7 Pat., 396; Amar-
chand v Madhoivji (1905) 29 Bom., 188,190, Attenborough Solomon
119131 AC., 76, 85.

id) Sec. 273, 1. S. Act; Ghansham Dass v Gulabi Rai (1927) 50
Mad, 927 FB. The suit may be instituted without a probate,
Chandra Kishore v. Prosanna Kumari (1911) 38 I.A., 7, 38 Cal., 327.
SiiccesMon Certificate is not necessary for property got by survivot-
ship, Raghavendra v Bhima (1892) 16 Bom., 349; Jagmohandas v.
Allu Maria (1895) 19 Bom., 338; Sital Prasad v. Kaiful Sheik (1922)
22 C W.N , 488. But it has been held to be necessary in case of
property inherited. Vairavan Chettiar v Snnivasachariar (1921) 44
Mad , 499 F.B. This case proceeds upon the view* that sons take
their father’s property as obstructed heritage which is erroneous.
They take only by survivorship. See ante § 272.

(e) Namberunial Chetty v. V e crape riimal (1930) .59 M.LJ, 596,
605.

(/) 14 Hals. 2nd ed., 193; Ramchandra v. Ramabai A.I.R.
1937 Bom., 341. Komalangi v. Sowbakiammal (1931) 54 Mad.,

24; In re the Estate of Alice Skinner (1936) 58 All., 22;

Sudhir Chandra v. Uttara Sundari (1932) 37 C.W.N , 435; Jaswant
Lai V. Goverdhan Lai A.I.R. 1937 Lah., 804; Nandkishore y. Pasupati-
nath (1928) 7 Pat, 3%; Bhupati Charan Basuw.Chandi Charan (1934)
39 C.W.N., 393. (Where the question who is entitled to the grant depends
upon the construction of the will, it will be construed to that extent).

912

WILLS.

[chap. XXL

affords full indemnity to all debtors paying their debts and
all persons delivering up such property to the person to
whom such probate or letters of administration have been
granted (g).

Executor’s § 780. An executor appointed under a Hindu will has

powers. power to dispose of the property of the deceased in such

manner as he thinks fit, subject however to any restriction
imposed by the will in respect of immovable property unless
the court granting probate empowers him otherwise (h),

ig) Kurrutelain v. Abbasi (1906) 32 LA., 244, 33 Cal., 116; In re
Bhobo Sundari (1881) 6 Cal., 460, Debendra v. Admr. GenL of Bengal
(1906) 35 lA, 109, 35 Cal., 955 (complete representation).

{h) Sec. 307, Succession Act; Krishnaswami v. Gouriamma A I.R.
1936 Mad., 256; Suneelkumar v. Shishirkiimar (1936 ) 62 Cal, 552.

CHAPTER XXII

RELIGIOUS AND CHARITABLE ENDOWMENTS.

§ 781. Gifts for religious and charitable purposes had Ishta and
amongst the Aryans their source in charity and the desire to
acquire religious merit. They fall into two divisions, ishta
and purtta: the former meant sacrifices and sacrificial gifts
and the latter meant charities. The former led to heaven
and the latter to emancipation, thus placing charity on a
higher footing than religious ceremonies and sacrifices (a).

Manu says: “Let him, without tiring always offer sacrifices
{ishta) and perform works of charity {purtta) with faith; for
offerings and charitable works made with faith and with
lawfully earned money procure endless rewards. Let him
always practise, according to his ability with a cheerful heart,
the duty of liberality {danadharma) both by sacrifices {ishta)
and charitable works {purtta) if he finds a worthy recipient
for his gifts” (fe).

Ishta works are enumerated by Pandit Prannath Saraswati
in his work on Endowments as: (1) Vedic sacrifices; (2)

Gifts offered to priests at the same; (3) Preserving the Vedas;

(4) Religious austerity; (5) Rectitude; (6) Vaisvadeva sacri-
fices; (7) Hospitality {atithya) (c). or charitable acts

are tanks, wells with flights of steps, temples, planting of groves,
the gift of food, dharmasalas and places for supplying water,
the relief of the sick, the establishment of processions for the
honour of deities and so on; gifts for the promotion of educa-
tion and knowledge are specially meritorious {d) ,

It will be noticed that temples and processio/is for deities
were considered as charitable acts {purtta)^ while hospitality
{atithya) was considered as a sacrificial gift {ishta).

§ 782. According to English law, ‘charitable trusts’ in Charitable
the legal sense comprise four principal divisions: trusts for
the relief of poverty, trusts for the advancement of education.

(а) Yama says “Heaven is attained by ishta; by purtta, one enjoys
final emancipation”. Saraswati, 26. Manohur Mukherji v. Bhupendra-
nath (1933) 60 Cal., 452 F.B.

(б) Manu, IV. 226-227.

(c) Saraswati, 20-21.

id) Saraswati, 25-28. The subject is fully discussed in ‘the Hindu
Law of Endowments’ by Pandit P. N. Saraswati, in the appendix on
Public Chanties in Mandlik’s Hindu Law and in P. R. Ganapathi
Iyer’s ‘Hindu and Mahomedan Religious Endowments.’

60

914

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

Superstitious
uses not
forbidden

trusts for the advancement of religion and trusts for other
purposes beneficial to the community not falling under any
of the preceding heads (e). All charities to be administered
bv the Court must fall within one or other of these divisions
but not every object which falls within those divisions is
charitable unless it is of a public nature, intended to benefit
the community or some part -►of it and not merely private
individuals or a class of private individuals ( /) . The courts
in India have, in relation to Hindu wills and gifts, adopted
the technical meaning of charitable trusts and charitable
purposes which the courts in England have placed upon the
term ‘chanty’ in the statute of Elizabeth (/^). All purposes
which are charitable according to English law will be charit-
able under Hindu law. But, in addition, under the head of
advancement of religion, there are other charitable objects
in Hindu law which will not be charitable according to
English law; for that law forbids bequests for superstitious
uses, a restriction which does not apply to grants of this
character in India, even m the Presidency towns (g), and
such grants have been repeatedly enforced by the Privy
Council (A). What are religious purposes and what religious
purposes will be charitable must of course be entirely de-
cided according to Hindu law and Hindu notions.

The definition of charitable purpose m the Charitable
Endowments Act (VI of 1890) includes relief of the poor,
education, medical relief, and the advancement of any other
object of general public utility but does not include a purpose
which relates exclusively to religious teaching or worship (i).
Section 92 of the Civil Procedure Code, 1908, refers to public
purposes of a charitable or religious nature and the Charit-

(e) Morice v Bishop of Durham (1805) 10 Ves, 522, 532, Com-
missioners of Income-Tax v. Pemsel (1891) A.C , 531, 583, 4 Hals,
2nd ed., 109-10

(/) Re Macduff, Macduff v. Macduff (1896) 2 Ch , 451, 466 CA.;
Re Topham (1938) 1 All E R , 181, 185.

(/i) Gangbai v Thavur (1863) 1 Bom. H C.R. 71; University of
Bombay v Municipal Commissioner, Bombay (1892) 16 Bom, 217;
Sayad Hussein Miran v. Collector of Kaira (1897) 21 Bom, 48, 52;
Monie V Scott (1919) 43 Bom, 28i, 292

ig) Das Merces v Cones 2 Hyde, 65, Andrews v. Joakim (1859)
2 B L.R. (OCJ.), 148, Judah v Judah (1890) 5 BLR, 433, Khusal-
chand v Mahadevgiri (1875) 12 Bom HC, 214; Rupa Jagshet v.
Krishnaji (1885) 9 Bom, 169, Ganapathi Iyer, Endowments, 196, 197.

ih) Ramtonoo v. Ramgopal I Kn , 245; Jewun v. Shah Kubeerood-
deen (1841) 2 M.I A., 390, 6 W R., 3; Sonatun By sack v. fuggut-
soondree (1859) 8 MIA., 66; Juggutmohini v. Mt, Sokheemoney
(1871) 14 MI. A., 289, 10 B L.R , 19.

ii) The Charitable Endowments Act (VI of 1890) S. 2.

PARAS. 782-783.] PUBLIC AND PRIVATE ENDOWMENTS.

915

able and Religious Trusts Act (XIV of 1920) refers to trusts
created or existing for a public purpose of a charitable or
religious nature. The Transfer of Property Act, 1882,
defines, in effect, public religious and charitable trusts
as transfers of property for the benefit of the public in the
advancement of religion, knowledge, commerce, health, safety
or any other object beneficial* to mankind (/).

A charitable or religious endowment, in order to be a
charity in the legal sense, will have to be for purposes of a
public nature, in other words, for the benefit of the com-
munity or some part of it ik) , Otherwise, it will be a piivate
trust (/). A trust is none the less a trust for a public pur-
pose, if its mam object is in fact the support of fakirs of a
particular sect and the propagation of the tenets of that
sect (m).

The distinction in Hindu law between religious
and charitable endowments is a modern one (n).

§ 783. Religious endowments are of two kinds, public Public and
and private. In a public endowment, the dedication is for prwate ^
the use or benefit of the public. But when property is set ° ^

apart for the worship of a family god, in which the public
are not interested, the endowment is a private one. The
family idols are not however chattels or the property of the
family. They are legal entities having, within limits, inde-
pendent rights

(/) The Transfer of Property Act, S. 18.

(k) 4 Hals. 2nd ed., para. 146.

(/) Sathappayyar v. Penaswami (1890) 14 Mad., 1; Prasaddas v.

Jagannath (1933) 60 Cal., 538.

(m) Puran Atal v. Darshan Das (1912) 34 AIL, 468.

(n) Manohur Mukerji v. Bhupendranath (1933) 60 Cal., 452, 475
F.B. For the distinction between a private and a public shrine, see
Parma Nand v. Nihal Chand (1938 ) 65 I. A., 252, AJ.R. 1938 P.C.,

195 (essentials of a public trust) , Doorganath Roy v. Ram Chunder
Sen (1876 ) 4 I. A., 52, 2 Cal., 341, Jugalkishore v. Lakshman Das
(1899) 23 Bom., 659; Ram Prasad Gupta v. Ram Kishun (1932) H
Pat., 594; Protopchandra v. Brijnath (1892) 19 Cal., 275; Panna*
sundari v. Benares Bank Ltd, A.I.R. 1938 Cal., 81; Koman Nair
V. Achutan Nair (1935) 58 Mad., 91, 61 I. A., 105; Sahdeo Das v.

Raja Ram A.I.R. 1932 AIL, 708, Pujari Lakshmana Goundan v.

Subramania Iyer A.I.R. 1924 P.C., 44, 29 C.W.N., 112; affg. (1919)

M.W.N., 899; Puraviya v. Poonachi (1921) 40 M.L.J , 289; Premo
V. Sheonath A.I.R. 1933 Oudh, 22; Venkata Sundara v. President,

H. R. E. Board, Madras, (1937) 2 M.LJ., 876.

(ni) (1925) 52 I.A., 245, 52 Cal., 809 supra; Muthiah

Chetti V. Periannan Chetti (1916) 4 M.L.W., 228. The Privy Council
in Kunwar Doorga Nath v. Ram Chunder (1877) 4 I. A., 52, 2 Cfid.,

341 observed: “Where the temple is a public temple, the dedication
may be such that the family itself could not put an end to it but in
the case of a family idol, the consensus of the whole family might
give the estate another direction”. See also Gobinda Kumar v.

Debendra Kumar (1907) 12 C.W.N., 98, It was however pointed out

916

Rule against

perpetuities

inapplicable.

Colourable

religious

endowment.

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

§ 784. Bequests to idols and temples are not invalid
foi transgressing the rule which forbids the creation of
perpetuities. “It being assumed to be a principle of
Hindu law that a gift can be made to an idol, which is
a caput mortuurn, and incapable of alienating, you can-
not break in upon that principle by engrafting upon it
the English law of perpetuities ” (n- ) . In fact both the
cases, in which the Bengal High Court in 1869 set aside the
will as creating secular estates of a perpetual nature, contained
devises of an e(]uall\ perpetual nature in favour of idols,
which w^ere supported But where a will, under the form

of a devise foi religious pui poses, really gives the beneficial
interest to the devisees, subject merely to a trust for the per-
formance of the religious purposes, it will be governed bv
the ordinary Hindu law^ and will be constiued as creating a
charge for a leligious puipose and any provisions for per-
petual descent, and foi lestraming alienation, will, therefore,
be void The result will be to set aside the will, as regards the
descent of the property, leaving the heirs-at-law liable to keep
up the idols, and defray the propci expenses of the
worship (p). A jottioii will the rule against perpetuities

in Sri Sn Gopal v Hadha Hinode Mnndal (1925) 41 CL I .196, AIR
1925 Cal . 996, 1003 that ‘tho question whether in cases of dhs<4ute de-
butter, where the property is absolutely vested in the deity, the successors
of the members of the family, who give the estate another direction may
not call in question the diversion of the estate did not arise nor was
It considered by the Judicial (.ommitlee” Even if the consensus of
the whole family can convert a debutter property, such consensus
must be of all the members male and female, who are interested in
the worship of the ileity (.handi ( haran v Du la I Ghandra Paik
(1927) 54 Cal, 30, Monmohon Ghosh \ Siddeshwar (1922) 27 C W.N.,
218, Lalit Moh^n v Brojvndra Nath (1926) 53 Cal, 251, Manick-
ammal v Murngappa AIR 1935 Mad, 483, Bhabatarim ^ Ashman-
tara AIR 1938 Cal , 490 In Ishwari Bhubaneshwari v Brajo Nath
Dey (1937) 64 I A , 203, [1937] 2 Cal, 447, the Privy Council have
left the matter- open though in the judgment of the High Court
(60 Cal , .54) which they affirmed on other grounds, the Calcutta
High Court has pointed out that there is no warrant in Hindu law
for such a conversion by agreement The decision in 60 Cal , 54 has
been followed in a later decision, Banna Sundari v Benares Bank Ltd,
AI.R 1938 Cal, 81

(n~) Per Markby, J , Kumara Asima v Kumara Krishna (1859)
2 B L.R. (O.CJ), 11, 47, Bhuggobiitty Prosonno Sen v Gooroo
Prosonno Sen (1898) 25 Cal. 112, Prafulla ('hander v Jogendra Nath
(1905) 9 CW.N, 528

(o) Tagore v Tagore (1872) lA Supp Vol 47, 9 BLR, 377,
Knshnaramani v Ananda (1870) 4 B L.R (OCJ), 231, Brojosoon-
dery v. Luchmee Koonwarce (1875) 15 BLR, (PC.), 176 note.

ip) Sonatun By sack v. Sreemutty Juggutsoondree Dossee (1859)
8 M.I A , 66, explained in Jadu Nath v Sitaramji (1917) 44 I A , 187,
190, 39 All, 553, Asutosh Dutt \ Doorga Charan (1880) 6 I A, 182,
5 Cal, 438 In Promotho v Radhika (1875) 14 B.L.R., 175 and
Sin Thakur Parmod v Atkins (1919) 4 Pat LJ, 533, the dedications!
were held to be merely nominal.

PARAS. 784-786.] RELIGIOUS ENDOWMENTS.

917

apply, where the estate created is in its nature secular, though
the motive for creating it is religious (p').

§ 785. Gifts for the installation, consecration, worship Religious
and service of idols and gifts to idols already installed and endowmsnts.
consecrated (g), gifts for the building and renovation of
temples (r), for the processions of idols and their vehicles
and for religious festivals (5),*in other words, gifts to religious
institutions or for religious purposes of every kind are valid
religious endowments.

§ 786. Maths are in the main religious institutions. Maths.
Their primary purpose is the maintenance of a com-
petent line of religious teachers for the advancement
of religion and piety, for the promotion of religious
knowledge, the imparting of spiritual instruction to

(pi) Anantha v. Nagamuthu (18R2) 4 Mad., 200.

f^) Bhupati Nath v. Ram Lai Maitri (1910) 37 Cal., 128 F.B.,
overruling 29 Cal., 260, Shibessuree Debia v. Mothooro Nath (1869)
13 M.I.A , 270, Juggut Mohini v. Sokhemoney (1871) 14 M.I.A., 289;
Prosonno Kumari Debya v. Goiab Chand (1875) 2 I A, 145, Rajessuree
Debia v Jogendra Nath (1875) 23 W R , 278, Duarkanath v. Burroda
Prasad (1878) 4 Cal., 443, 446; Gokool Nath Guha v. Issur Lochun
Roy (1887) 14 Cal, 222 [Siva temple, resthouse and garden; bnt
see Surbomungola v. Mohendronath (1879) 4 Cal., 508], Prafulla
(.hunder Mullick v. Jogendra Nath (1905 ) 9 C.W N , 528 (Durga

piija and Lakshmi piija) , Bhuggobutty Prosonno Sen v Gooroo
Prosonno Sen (1898 ) 25 Cal., 112, Chandra Mohan v Jnanendra
(1923) 27 C.W.N , 1033, Lakshmi Narayan Sinha \ Gostha Raman
Sinha (1937) 41 C.W.N, 759, A.I.R. 1937 Cal, 327, Bhabatarini v.
Ashniantara A.I R. 1938 Cal., 490; Khusalchand v. Mahadeovgiri (1875)
12 Bom. H C , 214, Lakshnnshankar v. Vaijnath (1882) 6 Bum, 24;
Rupa Jagshet v Knshnaji Govind (1884 ) 9 Bom., 169 (gift to

worship family idol) , Monohur v Lakshmiram (1887) 12 Bom., 247
and on appeal (1899) 26 I.A., 199, 24 Bom., 50, In re Lakshmibai
(1888) 12 Bom., 638, Chintaman Bajaji Dev. v. Dhondo Ganesh (1891)

15 Bom, 612, 620, Jiigalkishore v. Lakshman Das (1899) 23 Bom.,

659, Karuppa v Arumuga (1882) 5 Mad., 383. I^aghunath Prasad
v. Gobind Prasad (1886) 8 All., 76 (father's provision for permanent

shrine for family idol), Sarab Sukh Das \. Ram Prasad (1924) 46

All., 130 (dedication for idol to he installed) , Bhekdhari Singh v.
Sri Ramchanderjee (1931) 10 Pat, 388 As to idols mutilated, see
Bijoychand v Kahpada (1914) 41 Cal, 57 (the religious purpose
survives the mutilation or destruction of the image) A trust for
the performance of sraddhas is valid, see 9 C.W.N , 528 supra and 6
Bom., 24 supra, 4 Cal., 443 supra.

(r) Thackersey Dewraj v. Hurbhum Nursey (1884) 8 Bom., 432;
Mohar Singh v. Het Singh (1910) 32 All., 337 (to complete a temple
and maintain an idol) , Khub Lai v. Ajodhya Missir (1916) 43 Cal.,
574, 583 (completion of temple buildings).

( 5 ) Vaithilinga v. Somasundara (1893) 17 Mad., 199: special

endowments for specihc services or religious chanties are known as
katlais in the Tamil country. Annada Charan v. Kamala Sundari
A.I.R. 1936 Cal., 405 (festival). Rathnam v. Swasubramaniam (1893)

16 Mad., 353; Giyana Sambanda v. Kandasami Tambiran (1887) 10
Mad, 375, 479; (1905) 9 C.W.N., 528, supra.

918

CHARITABLE ENDOWMENTS.

[chap. XXII,

the disciples and followers of the math and the
maintenance of the doctrines of particular schools of religion
or philosophy. Though there are idols connected with the
maths, their worship is quite a secondary matter. In addition
to religious instruction, other charitable purposes are also
served by these institutions, some of these maths being more
charitable than religious (f) ^

Charitable

endowments.

§ 787. Illustrations of bequests for charitable purposes
are those for sadavarals (u), foi dharmasalas, resthouses (v)
and annasatrams (choultries) foi feeding the poor [w) , for
the establishment and support of schools, colleges and uni-

(/) Vidyapurna Tirtha Suami \ Vidyamdhi T irthasivami (1904)
27 Mad, 435, Giyana Sambanda v Kandaswami (1887) 10 Mad., 375.
The nature and origin of these institutions were described in Samniantha
Pandarav Sellappa Chetty (1879) 2 Mad, 175, 179, as follows — “A pre-
ceptor of religious doctrine gathers around him a number of disciples whom
he initiates into the particular mysteries of the order, and instructs
in Its religious tenets Such of these disciples as intend to become
religious teachers, renounce their connection with their family and
all claims to the family wealth, and, as it were, afiiliate themselves
to the spiritual teacher whose school they have entered Pious persons
endow the schools with property which is vested m the preceptor for
the time being, and a home for the school is erected and a mattam
constituted The property of the mattam does not descend to the
disciples or elders in common, the pieceptor, the head of the insti-
tution, selects among the affiliated disciples him whom he deems the
most competent, and m his own life-time installs the disciple so
selected as his successor, not uncommonly with some ceremonies.
After the death of the preceptor, the disciple so chosen is installed
in the gaddi, and takes bv succession the property which has been
held by his predecessor ” See the definition of a math in the Madras
Hindu Religious Endowments Act, section 9(7),

(a) Jamnabai \ Khimji (1890) 14 Bom, 1, Tricumdas Mulji

v Khimji Viillabh Das^ (1892) 16 Bom, 626, Morarji Cullianji v.
Nenbhai (1893) 17 Bom, 351, Jugalhishore v Lakshmandas (1899)
23 Bom., 659

(v) Piirmaniirdas v Venayak Rao (1883) 9 I A , 86, 7 Bom, 19;
Gordhan Das \ Chunni Lai (1908) 30 All, 111

iw) Duarkanath v Burroda Persaud (1879) 4 Cal, 443, Rajendra
Lall V Ra] Cooman (1907) 34 Cal , 5, Kedar Nath Dutt v Atul Krishna
Ghose (1908) 12 C W N 1083 (feeding Brahmins on the day following
Sivarathri) , Lakshmi Shankar v Vaijnath (1881) 6 Bom., 24 (for feed-
ing Brahmins and performance of ceremonies) , Morarji Culhanji v.
Nenbai (1892) 17 Bom, 351, Advocate-GeneraL Bombay v Strongman
(1905) 6 Bom. L R , 56 (annachatram) , Narasimha v Ayyan Chetty
(1889) 12 Mad., 157 (annachatiam) , Alagappa v Sivaramasundara
(1896) 19 Mad, 211 (feeding), V aidyanatha v Swaminatha (1924) 51
I.A , 282, 47 Mad, 884, Ramappa Naidu v Lakshmanan Chetti (1928)
54 MLJ, 272, Sheo Shankar Gir \ Ram Shewak (1897) 24 Cal., 77
(feeding fakirs and mendicants) , Sardar Singh v Kunj Behan (1922)
49 I. A., 383, 44 All, 503 (maintenance of priests and bhog offerings
to a deity) Regarding gifts to charitable society, see Anjuman Islamiaof
Muttra V Nasiruddin (1906 ) 28 All, 384 Regarding gifts to poor
relations, see (1904) 31 Cal., 166 infra ^ Nakshetramali Dei v. Braja-
sunder (1933) 12 Pat, 708.

PARAS. 787-788.] BEQUEST TO DHARMA.

919

versities (x ) , for dispensaries and hospitals for medical help
to the sick and the infirm (y), for the construction and
maintenance of tanks, wells, and reservoirs of water (z), and
for the provision of drinking water for men and animals {z^)
and so on.

§ 788. It has frequently been held that a gift or bequest Bequest to
to dharma or dharam is void* for vagueness and uncertainty,

In Wilson’s dictionary the term ‘dharma’ is defined as ‘law,
virtue, legal or moral duty’ (a). The reasons for holding
such gifts or bequests to be void were examined by the Privy
Council in Runchordas V andrawandas v. Parvatibhai (fc) and
the judgment of Lord Eldon in Morice v. Bishop of Durham
was followed: “As it is a maxim that the execution of a trust
shall be under the control of the Court, it must be of such
a natute that it can be under that control so that the admini-
stration of it can be reviewed by the Court, or if the trustee
dies the Court itself can execute the trust — a trust therefore

(x) The Tagore case (1872) I. A. Supp. Vol. 47 (Tagore Law
Lectureship) , Han Dasi Debi v. Secy, of State (1880) 5 Cal., 228,
affd. in 8 LA., 46, 7 Cal., 304; Manorama v. Kalicharan (1904) 31
Cal., 166 (University ot Calcutta) ; Jitendra Nath Palit v. Lokendra
Nath Paht (1915) 22 C.L.J., 593, Girdhan Lai v. Ram Lai (1899)
21 All, 200, University of Bombay v. Municipality of Bombay
(1892) 16 Bom., 217. Regarding gifts to pandits holding tolls for
learning (schools), at the time of the Durga puja, see Dwarkanath v.
Burroda Prasad (1879) 4 Cal., 443.

(y) Rajessurree Debia v, Jogendra Nath 23 W.R., 278; Hon
Dasi V. Secy, of State (1880) 5 Cal., 228 affd. in (1881) 8 I.A., 46,
7 Cal, 304; Fanindra v. Admr,-Gen, of Bengal (1901) 6 C.W.N., 321.

(z) Sivaraman Chetti v. Muthaiya Chetti (1888) 16 LA., 48, 12
Mad., 241 affirming 6 Mad,, 229; Jamnabai v. Khimji (1890) 14 Bom., 1;
Fatmabibi v. Advocate-General^ Bombay j (1882) 6 Bom., 42; Khub
Lai V. Ajodhya Missir (1916) 43 Cal., 574; Gauri Shankar v. Hemant
Kumari A.I.R. 1936 All., 301 F.B. (dedication of bathing ghat).

(zl) Jamnabai v. Khimji (1890) 14 Bom., 1.

(а) For dharma in general, see ante § 6.

(б) (1899) 26 I A., 71, 23 Bom., 725 affirming (1897) 21 Bom.,
646; Bai Motivahu v. Mamubhai (1895) 19 Bom., 647; Devshankar v.
Motiram (1894) 18 Bom., 136 (bequest in favour of dharmada void
for uncertainty) ; Morarji Cullianji v. Nenbai (1893) 17 Bom., 351
(bequest to dharm void) : Cursandas Govindji v. Vundravandas (1890)
14 Bom., 482; Gangabai v. Thavar Mulla (1863) 1 Bom. H.C., 71;
Phundan Lai v. Arya Prithi Nidhi Sabha (1911) 33 AIL, 793 (gift to
no particular deity is invalid) ; Chandi Charan Mitra v. Haribola Das
(1919) 46 Cal., 951 (gift to worship of god is invalid) ; Bankey Lai
V, Peare Lai (1931) 53 All, 710 (gift to Sri Ramg valid); Satkarhi
Bhattacharya v. Hazarilal (1931) 58 Cal., 1025 (bequest to pious acts
— punyakarya, is invalid) ; Brij Lai v. Narain Das (1933) 14 Lah.,
827 (gift to dharmath is invalid) ; Harilal Chhagan Led Desai v. Bai
Manjoola A.I.R. 1936 Bom., 13 (bequest to religious, educational or
philanthropic purposes is invalid) ; Dinonath v. Hansraj A I.R. 1936
Cal., 44 (chanties and subscriptions promised, held uncertain).

920

RELIGIOUS AND CHARITABLE ENDOWMENTS. [ CHAP. XXII,

Gifts void for
■ncertainty.

which in case of maladministration could be re-
formed and a due administration directed, and then, unless
the subject and objects can be ascertained upon principles
familiar in other cases, it must be decided that the Court can
neither reform maladministration nor direct a due admini-
stration” (c).

Subramania Ayyar, J., m Parthasarathy Pillai v.
Thiruvengada Pillai has howevei pointed out that the word
‘dhaima’ when used in connection with gifts of property by
a Hindu has a perfectly well-settled meaning and denotes
objects indicated by the terms Hshta and ^purtta donations.
The word is a compendious term referring to certain classes of
pious gifts and is not a mere vague or uncertain expres-
sion (d). Mookerjee, J., in Bhupati Nath v. Ram Lai Maitra
supports this view (e). According to Medhatitki and
Kulluka, commenting on Manu , IV, 226-227, dharma in
the context of gifts means ishta and purtta gifts. On this
meaning of the word ‘dharma’, there can be no vagueness or
uncertainty. The word is used in Hindu law for religious
and charitable gifts recognised by that system.

§ 789. Bequests for ‘such charitable or public purposes
as the trustees think proper’ are void for uncertainty (/) .
Where the trustees are allowed an alternative as to whether the
purposes to which they are to apply the property given
are to be charitable or non-charitable, the gift is void (g).
So, gifts for ‘charitable purposes or other purposes’ ih)
or “gifts expressed m other alternative terms admitting
non-charitable objects are not charitable; for they may
be executed \^g[thout any pait of the property being applied
to charitable purposes” {i). Gifts for ‘charitable and
benevolent purposes’ ( / ) , for ‘charitable and pious purposes,’
for ‘religious »and benevolent purposes,’ for ‘charitable and

ic) (1804) 9 Ves, 399, 10 Ves , 522, 32 E R , 947, 954.

{(1) (1907) 30 Mad., 340, 343, compare Vaidyanatha v Swaminatha
(1924) 51 I A, 282, 2%-291, 47 Mad, 884, for the use of the word
‘dharmam’ in the sense of charity.

(e) (1910) 37 Cal, 128 F.B.

(/) Blair V. Duncan (1902) AC, 37.

(g) Re Macduff, Macduff v. Macduff (1896) 2 Ch., 451, 463, 470,
C.A., Re Davidson, Minty v. Bourne (1909) 1 Ch , 567, C.A , 4 Hals.
2nd edn , para. 221 (pp. 167-168)

{h) Re Chapman, Hales v A G (1922) 2 Ch., 479, C.A.

(i) 4 Hals., 2nd ed., page 167.

(;) Re Best, Jarvis v. Birmingham Corporation (1904) 2 Ch , 354;
Caldwell v. Caldwell (1921) 91 L.J. (P.C.), 95 H.L.

PARA. 789.] TRUSTS VOID FOR UNCERTAINTY.

921

deserving objects’ (A;), for charitable and public purposes (Z)
and for ‘religious and charitable institutions and purposes’
are valid.

In Venkatanarasimha Rao v. Subba Rao, it was held that
a trust either for the spread of Sanskrit language or for the
spread of Hindu religion or for both was void in law and
unenforceable; the words ‘for*the spread of Hindu religion’
were regarded as too vague and uncertain to create an execut-
able trust (ni). The opinion of one of the judges in this
ease that a liust for the spread of Sanskrit language is void,
cannot be supported. A bequest of the surplus income ‘for
proper and just acts’ for the testator’s benefit is bad for
uncertainty (/?). Equally a direction to dispose of the residue
in a righteous manner in a pious and charitable way as may
appear .advisable to the executors is bad (o). A direction to
use an amount in good works (sata kam) is void ip). But
bequests of the residue to be spent and given away in charity
in such manner and to such religious and charitable purposes
as the executor may in his discretion think proper (p^) or
to such chanties as the trustees may think deserving (q)
have been held to be valid charitable bequests. A gift of
the surplus income to be used in such manner as the executors
may unanimously think proper for purposes ^of ‘popular
usefulness or for purposes of charity’ has been held to be
bad foi uncertainty (/). A bequest to ‘any of my agnates
or any other Brahmin who may be brought in and settled in
my dwelling house’ is void (5). A general direction to

ik) Re Sutton, Stone A G (1885) 28 Ch , 464.

(/) Blair V. Duncan (1902) A.C., 37, 44; A. G., Mew Zealand v.
Mew Zealand Insurance Co, (1937) 1 ^ P C. (where benevolent

purposes alone, held invalid).

im) (1923 ) 46 Mad, 300; see also Chandi Charan^ Mitra v. Han-
bala Das (1919) 46 Cal, 951 (bequest for worship of god, held bad
for uncertainty), Bnj Lai v. Narain Das (1933) 14 Lah., 827 (bequest
to dharmarth, dharmasala and Sanskrit education, invalid).

(/i) Gokool Nath Guha v. Issur Lochun Roy (1887) 14 Cal., 222.
(o) Nanalal Lallubhoy v. Harlochand (1890) 14 Bom, 476.
ip) Bai Bapi v. Jamnadas (1892) 22 Bom, 774.

(pi) Parbati v. Ram Barum Upadheya (1904) 31 Cal., 895.
ig) Smith V Massey (1906 ) 30 Bom., 500; Gordhan Das v. Chunni-
lal (1908) 30 All., 111.

(r) Tnkumdas Damodhar v. Haridas (1907) 31 Bom., 583;

Jamnabhai v. Dharsey (1902 ) 4 Bom. L.R., 893; Surbomungola Dabee
V. Mohendranath (1879) 4 Cal, 508 (where a pucca bathing ghat at
a suitable place in the river Hooghly and two temples for Siva were
held bad for uncertainty). Wells with flights of steps are clear cases
of charitable gifts and a bathing ghat is equally so, Gaun Shankar
V. Hemanta Kumari A.I.R. 1936 AIL, 301 F.B.

(s) Shyama Charan v. Sarup Chandra Sen (1912) 17 C.W.N., 39.

■922

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

Dedication,
’how effected.

trustees to pay at their discretion for the expenses of
hospitals, educational and other institutions, marriage and
thread ceremonies and excavation and consecration of tanks
in villages having a dearth of water or in the construction
and consecration of ghats and maths, has been held void
and inoperative for vagueness and uncertainty (^) .

§ 790. A dedication of 'property, whether movable or
immovable, lor a religious or charitable purpose, may,
according to Hindu law, be validly made without an instru-
ment in writing. It ma> be by a gift inter vivos or by a
bequest or bv a ceremonial or other relinquishment (u) , A
dedication of land for a public temple is not a gift requiring
a registered deed and is not governed by section 123 of the
Transfer of Property Act (v) , The Indian Trusts Act, 1882,
does not apply to public or private religious or charitable
endowments Oc).

Religious
ceremonies
not necessary.

On the question whether the usual religious ceremonies of
sankalpa (the foimula of resolve) and samarpana (delivery)
are necessarv (r), there is a conflict of decisions (y). Having
legard to modern conditions and views, they cannot be
regarded as absolutely essential requirements. It is the
intention that is material and the dedication may be expressed
or infened otherwise than from formal or religious
ceremonies

No trust
4*equired

§ 791 In order to create a valid dedication a trust is
not required iz) An appropriation of property for specific

it) barat Chandra Chose v Pratap Chandra Chose (1913) 40

Cal , 232. "

iu) Cangireddi v Tanimireddi (1927) 54 I A., 136, 50 Mad., 421,
affirming (1922) 45 Mad , 281 on this point, Ramalingay Sivachidambara
(1919) 42 Mad, 440, Pallayya v. Ramavadhanulu (1903) 13 MLJ,
364, Muddun Lai \ Komul Bibee 8 WR, 42, Marutiw Copal Krishnan
\ I R. 1932 Bom, 305, Caneshgir v Fatehchand AIR 1935 Nag, 114

iv) (1903) 13 MLJ, 364 supra, Narasimha v V enhatalingum

( 1927 ) 50 Mad , 687 F B , but sec Bhoopati Nath v Basanta Kumari
(1936) 63 Cal, 1098

iw) Indian Trusts Act, s 1 (1), Copu v. Sami (1905) 28 Mad,
517, (1927) 50 Mad, 687 F B. supra

(x) For the ceremonies by which utsarga (relinquishment) is
effected, see Saraswati, pp 127-128 and Ch. X; Mandlik, pp. 336-339.

(y) Deosaran Bharathi v Deoki Bharathi (1924) 3 Pat, 842,
Chaturbuj Singh v Sarada Charan Cuha (1932) 11 Pat, 701, Prem
Nath V Han Ram (1935) 16 Lah , 85, Chandu Lai v Rampat Mai
AIR 1933 Lah, 189, Ram Swaroop v. Thakur Ramachandraji A.I.R.
1935 Nag, 35, Bhabatarini v Ashmantara AIR 1938 Cal, 490, 496

iz) Manohar v Lakhmiram (1888) 12 Bom., 247, Bhuggobutty,
P. Sen V Coroo Prosonno Sen (1898) 25 Cal, 112; Prafulla Chunder
Mullick V Jogendranath (1905) 9 C.W.N., 528, Mathu Nath v. Lakhi

PARAS. 791-792.] DEDICATION ABSOLUTE OR PARTIAL.

923

religious or charitable purposes is all that is necessary for a
valid dedication (z^).

In Vidyavaruthi v. Balusami Ayyar, the Privy Council
observed: “It is also to be remembered that a ‘trust’ in the
sense in which the expression is used in English law, is
unknown in the Hindu system, pure and simple. Hindu piety
found expression in gifts to idols and images consecrated and
installed in temples, to religious institutions of every kind
and for all purposes considered meritorious in the Hindu
social and religious system: to Biahrnanas, Goswamis,
Sanyasis, etc. When the gift was to a holy person, it carried
with It in terms or by usage and custom certain obligations.
Under the Hindu law, the image of a deity of the Hindu
pantheon is, as has been aptly called, a ‘juristic entity’ vested
with the capacity of receiving gifts and holding property.
Religious institutions, known under different names are re-
garded as possessing the same ‘juristic’ capacity and gifts are
made to them by name. In many cases in Southern India,
especially where the diffusion of Aryan Brahmanism was
essential for bringing the Dravidian peoples under the religi-
ous rule of the Hindu svstem, colleges and monasteries under
the names of math were founded under spiritual teachers of
recognised sanctity. These men had and have ample discretion
in the application of the funds of the institution, but always
subject to certain obligations and duties, equally governed by
•custom and usage. When the gift is directly to an idol or a
temple, the seisin to complete the gift is necessarily effected by
human agency” (a).

§ 792. A dedication of property for religious or charit-
^ible purposes may be either absolute or partial (b) . In the
former case, the property is given out and out to an idol or
to a religious or charitable institution and the donor divests
himself of all beneficial interests in the property comprised
in the endowment (c) . Where the dedication is partial, a

Narain (1922) 50 Cal., 426; Venkatanarasimha v. Subba Rao (1923)
46 Mad., 300

(zi) Ram Dhan v. Prayag Narain (1921) 43 AIL, 503. A mere
easement, for instance the right to use a ghat for removing dying
persons may be created for a charitable purpose; Jaggamom v.
Nilmoni (1882) 9 Cal., 75.

(a) (1921) 48 I.A., 302, 311, 44 Mad., 831, 839.

ib) Iswari Bhubaneshwan v. Brojo Nath Dey (1937) 64 LA., 203,
211, [1937] 2 Cal., 447 affirming 60 Cal., 54.

(c) Jagadindra Nath v. Hemanta Kumari (1904) 31 I.A., 203, 32
Cal., 129, Jadu Nath v. Sitaramji (1917) 44 I.A., 187, 39 AIL, 553;
Rajender v. Sham Chand (1881) 6 Cal., 106; Bhuggobutty Prosonno
Sen V. Gooroo Prosonno Sen (1898) 25 Cal., 112; Chandi Charon v.
Dulal Chandra (1927) 54 Cal., 30; Panna Sundari v. Benares Bank

Dedication
may be
absolute or
partial.

924

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXIL

charge is created on the property or there is a tiust to receive
and apply a portion of the income for the religious or charit-
able purpose {d) In such a case, the propeity descends and
IS alienable and partible in the ordinary way subject to the
charge in favour of the idol or the religious or charitable
institution (e).

The effect of a valid* dedication is to place the
property comprised in the endowment extra com-
mercium and beyond the reach of creditois (e^) .
The dedication is not invalidated b> leason of the
fact that the members of the donor's family are nominated
trustees and given reasonable remuneration out of the endow-
ment and also rights of residence in the dedicated property (/) .
The question whether the idol or the religious or charitable
institution IS to be considered the true beneficidr\, subject to
a charge in favour of the heirs oi specified relations of the
donor or whethei the heirs aie the true benehciaries subject

Ltd AIR 1938 Cal, 81, Shn Gantsh Dharnidhar v Keshavrav
(1891) 15 Bom, 625, Sathianama Bharati v Saravanabagi (1895)
18 Mad, 266, 276, Sundar Singh v ISarain Das AIR 1934 Lah , 920
(Miccebi^ion from guru to chela excluding natural heirs — ab‘'ohite dedi-
cation), Nihal ('hand v Narain Das AIR 1934 Lah, 949, Lachhman
Das V Arva Pratimdi Sabha AIR 1932 Lah, 603 (temple out of
public subscriptions is a public endowment, adverse acts of a priest
cannot alter the real character of the temple property) , Narayan v.
Dattatraya A.I.R. 1933 Bom , 26

id) Sonatiin By sack \ Juggutsoondret (1859) 8 M LA , 66-

(dedication not made out), Ashutosh Dutt v Doorga Churn
(1879) 6 I A, 182, 5 Cal, 438, Jagadindra Nath Roy v.

Hemanta Kumar i (1905) 31 I A, 203, 32 Cal, 129, Jadu Nath v
Sitaramji (1917) 44 I A , 187, 39 All, 553, Gopal ball Sett v Puma
Chandra Basa^ (1922) 49 1 A , 100, 49 Cal, 459; Ram Coomar v..
Jogender Nath (1878) 4 Cal, 56, Madhitb Chandra v Rani Sarat
Kumari (1910) 15 CWN. 126, Kiiiada Prasad Deghoria v Kali Das
Naik (1915) 42 Cal, 536, Mahim Chandra Sarhar v Hara Kumari
Dasee (1915)* 42 Cal, 561, Bai Sundari Dass^a v Benode Behary
(1935) 39 CWN, 1264, Annada Charan v. Kttmalasundari A I.R.
1936 Cal, 405, Ramappa Naidii v Lakshmanan Chettiar (1928)
54 MLJ, 272 (partial trust for choultry and idol), Knshnaswami
V Avarambal AIR 1933 Mad, 204, Bhekdhari Singh v Sri Ram-
chanderji (1931) 10 Pat, 388, Parshadi Lai \ Brij Mohan Lai A I.R.
1936 Oudh, 52 (bequest of one-fourth income held a charge).

(c) (1878) 4 Cal, 56 supra^ Supparnmal v Collector of Tanjore
(1889) 12 Mad, 387, Mahatab v Mirdad 5 S.D , 268, 313 approved
in Delroos v. Nawab Syud (1875) 15 Beng L R., 167, affirmed by the
PC in 3 Cal, 324, Fultoo v Bhurrnt 10 W R , 299, Basoo v. Kishen
13 WR, 200, Brojo Sundaree v Luchmee 20 W.R., 95 PC, (1859)
8 MIA, 66 supra. Sheik Mahomed v Amarchand (1890) 17 LA.,.
28, 17 Cal, 498, (1905 ) 31 I A , 203, 32 Cal, 129 supra

(e^) Bishen Chand v Syed Nadir (1887) 15 LA, 1, 15 Cal, 329

(/) Ishwari Bhubaneshwari v Brojo Nath Dey (1937) 64 I A , 203,
211, 11937] 2 Cal, 447, 455, affg (1933 ) 60 Cal, 54, Jadu Nath
Singh V Sitaramji (1917) 44 I A , 187, 39 All, 553.

PARAS. 792-793.] EVIDENCE OF DEDICATION.

925

to a charge for the upkeep, worship and expenses of the idol
or for the maintenance of any other religious or charitable
institution will depend upon the construction of the gift or
the will as a whole (g). Provision may be made for the
expansion of the purpose of the dedication as the income
increases or a fixed income or scale may be prescribed so that
where the income exceeds what is required for it, it
would not be comprised in the dedication (h ) .

§ 793. Very stiong and clear evidence of an endowment
is required and the onus lies upon a party who sets up a
dedication to prove that pioperty has been inalienably con-
ferred upon dll idol to sustain its worship or upon a religious
or chaiitable institution. Where there is no instrument of
gift or trust, the meie fact that the rents and profits of
immovable property have been utilised for the support of an
idol or a religious oi chaiitable institution is insufficient to
establish an endowment oi a dedication (£)• The fact that
the deceased kaita of a joint Hindu family regularly paid the
expenses of a choultiy out of the profits of the family pro-
perty, the expenses however not exhausting the whole of the
profits, would not establish a dedication of the profits to the
charity; foi a distinction must be made between meeting all
the expenses of a charity out of a particular property and
applying all the receipts of that properly to the charity (/).

The mere execution of a deed of gift or instiument is not
enough to constitute a valid endowment (A;). It is necessary
that the executant should divest himself of the property; there
must be a transfer of the apparent evidences of ownership
from the donor to the donee. Whether he has done so or

ig) Har Narayan v. Surja Kunwari (1921) 48 I A^, 143, 43 All.,
291, U937) 64 I A, 203, 11937] 2 Cal., 447, 455 supra; Chandi Charan
Das V. Dulal Chandra (1927) 54 Cal., 30, 30 C.W.N , 930; Bhekdhari
Singh V. Sri Ramchanderji (1931) 10 Pat, 388; Krishnaswami v.
Avayambal A I.R. 1933 Mad., 204, Kandasami v. Munisami A.I.R.
1932 Mad . 589.

(A) (1937) 64 I.A., 203, [1937] 2 Cal., 447, 455 supra,

(i) Mudden Lai v. Komal Bibee (1867) 8 W.R., 42; Konwur
Doorganath v. Ram Chunder (1877) 4 I.A., 52, 2 Cal., 341.

(/) Gangi Reddi v. Tammi Reddi (1927) 54 I.A., 136, 50 Mad.,
421 reversing (1922) 45 Mad., 281; Abhiram Goswami v. Shyama
Charan (1909) 36 I A., 148, 36 Cal., 1003; Kulada Prasad v. Kalidas
(1915) 42 Cal, 536; Gopi Mohan v. Bepin Behan A.I.R. 1937 Cal.,
371, 65 C.L.J., 325. See Bansilal v. Govindlal A.I.R. 1932 Bom., 439.

(A) Jadu Nath v. Sitaramji (1917) 44 I.A., 187, 39 AIL, 553; Ram
Dhan v. Piayag Narain (1921) 43 All., 503; Janardhan Jiu v. Khittish
Chandra A.l R. 1932 Cal., 419; Sin Thakur v. Atkins (1919) 4 P.L.J.,
533.

Proof of
dedication.

926

RELIGIOUS AND CHARITABLE ENDOWMENTS. [ CHAP. XXII,

Idol a

juridical

person.

not can only be determined by his subsequent acts and con-
duct (/). But where the intention to dedicate is clear and
the divestiture is contemporaneous, the subsequent acts and
conduct of the donor are irrelevant and cannot reinvest him;
for a valid endowment, once created, can never be re-
voked (m). Where, however, this is not the case and his
subsequent dealings with the .property show that he did not
intend to create an endowment, there will be no trust and the
properly will not be debutter and will continue to be his
and is liable to be attached and sold in execution of decrees
against him (n) .

In rases where there is no real dedication of pioperty but
only an attempt to create a perpetuity m favour of one’s own
descendants, the gift to the idol is void (o). Where however
the trust has been effectually cicated, the fact that the trustees
or other persons concerned have failed to carry out the
conditions of the trust will not invalidate it and neither the
founder nor his heirs can resume it(p). The beneficial
ownership in the trust properties cannot in such circumstances
revert to the founder or his family.

§ 794. Where the dedication is of the completest
character, the property comprised in it belongs to
the idol or the religious or charitable foundation
conceived as a juristic person capable of taking and

(/) (1921) 43 All, 503 supra. Sin Thakur v Atkins (1919) 4
P.L.J , 533, Bhekdhari Singh v. Sri Ramchanderji (1930) 10 Pat., 388;
Sri Sri Gopal v. Radha Binode A.I R 1925 Cal, 996, 41 C.L.J., 396;
Ramchandra Mukerjee v Ranjit Singh (1900) 27 Cal, 242, 251.

(m) Singh Sanatan v. Singh Rajput (1938) 65 I.A., 106, 116.
Dasami Sahu v Param Shameshwar (1929) 51 AIL, 621. But
on the question of the intention to dedicate and whether the transaction
was a sham or a cloak, the subsequent conduct will be relevant. See
the Evidence Act, s 92, proviso (1). Thiagaraja v. Vedathanni
(1936) 63 I.A., 126, 137-9, 59 Mad., 446.

(n) (1921) 43 All., 503 supra, Suppammal v. Collector of Tanjore
(1889) 12 Mad, 387, Watson v. Ramchund Dutt (1890) 17 I.A , 110,
18 Cal, 10, Sri Thakur v Atkins (1919) 4 P.LJ., 533; Bhekdhari
Prasad v. Sri Ram Chanderji (1931) 10 Pat, 388; Madhuh Chandra
V Rani Sarat Kumari (1910) 15 C.W.N , 126; Ramchandra v. Ranjit
Singh (1900) 27 Cal., 242, 251.

(o) Promotho Dossee v Radhika Persaud (1875) 14 B.L.R , 175;
Sri Thakurji v. Sukhdeo Singh (1920) 42 All, 395 F.B.; Niranjan
Prasad v Behan Lai AIR. 1929 AIL, 302.

(p) Gordhan Das v. Chunnilal (1908 ) 30 AIL, 111, 114, 115;
Suppammal v. Collector of Tanjore (1889) 12 Mad., 387; Gopee Nath
Chowdhry v. Gooroo Dass (1872) 18 W.R., 472, Nam Narain Singh
V. Ramoon Panrey (1874) 23 W R., 76; Juggut Mohinee Dossee v.
Sokhmoney (1871) 14 MIA, 281, 306; Madhub Chandra v. Sarat
Kumari (1910) 15 C.W.N ., 126; Hemangini v. Nobin Chund Ghose
(1882) 8 Cal., 788 (gift of a share in rent, and profits held amounted
to a gift of a share of the corpus).

PARAS. 794-795.] IDOLS ARE JURISTIC PERSONS.

927

holding property {q). The possession and management
of the dedicated property and the right to sue in
respect of it are vested in the manager, dharmakarla, or
shebait fr). A suit respecting the property in which the idol
is interested is properly brought and defended in the name of
the idol, although ex necessitate rei the proceedings in the
suit must be carried on by soipe person who represents the
idol, usually the manager of the temple, in which the idol
is installed ( 5 ). But it is permissible to file a suit in the
name of the idol where the shebait has not been appointed,
the Court appointing some person to act as the guardian
ad litem of the idol (^). Where there is a breach of trust (m)
or the shebait claims adversely to the idol (v) it is necessary
that the idol should be represented by a disinterested next
friend. In Prarnatha Nath Mullick v. Pradyumna Kumar
Mullick^ where the appellant claimed the right to remove the
image during his term of worship, their Lordships held that
the will of the deity as regards its location must be respected
and the suit was remitted in order that the image might
appear by a disinterested person to be appointed by the
Court (w ) .

§ 795. A female can be the manager of a religious endow- Female
nient though she cannot perform spiritual functions (x) . It has manager..

( 9 ) Jagadindra Nath v. Hemanta Kumari (1904) 31 LA., 203, 209,
32 Cal., 129; Jadu Nath v. Thakur Sitaramji (1917) 44 I.A., 187, 39
All, 553; Vidya Varuthi v. Baluswami Iyer (1921) 48 I.A., 302, 44
Mad., 831; Prarnatha Nath Mullick v. Pradyumna Kumar (1925)
52 LA., 245, 52 Cal., 809; Kanhaiya Lai v. Hamid Ah (1933) 60 LA.,
263, 8 Luck., 351; Manohar Ganesh v. Lakshmiram (1888) 12 Bom.,
247, 263.

(r) Prossunno Kumari v. Golab (1875) 2 LA., 145; Jagadindranath
V. Hemanta Kumari (1905) 31 LA., 203, 32 Cal., 129; Bidhu Sekhar
V. Kulada Prasad (1919) 46 Cal., 877; Jodhi Rai v. Basdeo Prasad
(1911) 33 AIL, 735 F.B.

(s) Jodhi Rai v. Basdeo Prasad (1911) 33 All., 735 F.B., over-
ruling Thakur Raghnathjt, v. Shah Lai Chand (1897) 19 All., 330.

(^) Administrator Genl, of Bengal v. Balkishen (1924) 51 Cal.,
953.

(tt) Thakersay Dewraj v. Hurhhum (1884) 8 Bom., 432.

( 1 ;) Bimal Krishna v. Jnanendra Krishna [1937] 2 Cal., 105;
Upendranath v. Bai Kuntha Nath (1928) 33 C.W.N., 96; Pashupatinath
V. Pradyumna Kumar (1936) 63 Cal., 454, Maruti v. Gopalkrishna
A.I.R. 1932 Bom., 305, 34 Bom. L.R., 415; Kunja Behar v. Mohit
Singh A.I.R. 1934 Pat., 531; Mt, Puna Bihi v. Keshab Rai A.I.R. 1936
Pat., 411.

(n;) (1925) 52 LA., 245, 52 Cal., 809; see Kanhaiyal v. Hamid All
(1933) 60 LA.. 263, 8 Luck., 351.

(jc) Keshavbhat v. Bhagirathibai (1866) 3 Bom. H.C. (A.C.), 75;
Janoki Devi v. Gopal (1882) 10 LA., 32, 9 Cal., 766; Surendra Keshav
V. Doorgasundari (1892) 19 LA, 108, 128, 19 Cal., 513; Raja Rajeswari
V. Subramania (1920) 40 Mad., 205; Kashinath Mahadeo v. Gangubai
A.I.R. 1931 Bom., 170. See Moottoo Meemnatchy v. Villoo Mad. Dec. of

■928

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

Position of
«hebait,
manager or
dharmakarta.

been held that a Hindu female is not incompetent by reason
of her sex to succeed to the office of archaka or worshipper in
a temple and to the emoluments attached thereto (y) ; foi, she
may appoiat a qualified deputy to officiate in her stead.

§ 796. The managei of a temple is by virtue of his office
the administiator of the properties attached to it, as legaids
which he is in the position ‘of a trustee As legaids the
service of the temple and the duties appertaining to it, he is
lather in the position of the holder of an office or dignity (::).

The position of a dharmakarta of a public temple is not
that of a shebait or pujari of a shiine or of the head of a
math Those functionaries have a much higher right with
larger power of disposal and administration and they have
a personal inteiest of a beneficial character The dharma-
karta IS liteially no more than the manager of a charity and
his rights are nevei in a highei legal category than that of
a mere trustee (a)

The shebait is one who sei\es and sustains the deit) whose
image is installed in the shiine The duties and privileges of
a shebait are primaiily those of one who fills a sacied
office ( 6 ) . Shebaitship in its true conception therefore involves
two ideas, the ministrant of the deity and its manager; it is not
a bare office, but an office together with certain rights attached
to It

The position of a shebait, dharmakarta, oi manager
of a temple or other religious institution towards debuttai
property is not similar to that in England of a trustee towards
the trust property it is only that ceitain duties have to be
performed4)y him which are analogous to those of trustees ib) ,

1858, 136, Joy %Deb Surmah v Huroputty 16 WR, 282 See Hussain
Beebee v Hussain Shenf (1868) 4 Mad HC, 23, Punjab Customs,
88, unless the actual discharge of spiritual duties is required, Miijavar
V, Hussain (1880) 3 Mad, 95 Special custom is necessary, Janokee
V Gopaiil (1877) 2 Cal, 365, affd. (1883) 10 I.A , 32, 9 Cal, 766

(y) Annayya v Ammakha (1918) 41 Mad, 886 FB, overruling
Sundarambal v. Yogavana Gurukkal (1915) 38 Mad, 850 and dis-
tinguishing Mohan Lalji v Girdhan Lalji (1913) 40 I A, 97, 35 All,
283, Meenakshi v. Somasundaram (1921) 44 Mad, 205

(z) Ramanathan Chetti v Muriigappa Chetti (1906) 33 I A , 139,
29 Mad. 283. 289

(a) Srimvasachanar v Evalappa Mudaliar (1922 ) 49 I.A., 237,
250, 45 Mad , 565, approving Vidyapurna Tirthaswami v V idyanidhi
Tirth Swami (1904) 27 Mad, 435, Rama Reddy v Ranga Dasen
(1926) 49 Mad, 543. 546

(b) Nagendranath Palit v Robindra (1925) 53 Cal, 132,
143, Manohur Maker jee v Bhupendranath Mukherjee (1933) 60
Cal , 452, 494 F B

PARAS. 796 - 797 .] MANAGER'S POWER TO ALIENATE.

929

They have not the legal property, which is vested in the
deity or the institution. Each of them has only the title of a
manager of a religious endowment and is as such entitled,
subject to usage, to the custody of the idol and its pro-
perty (c).

The right of a shebait or of a priest to offerings made to Right to
an idol naturally depends upoti the nature of the offerings offerings,
in the absence of a custom or an express declaration by the
founder to the contrary. Where they are of a permanent
character, they ordinarily belong to the temple id). Where
they are perishable they may be appropriated by the priest
or other persons entitled to it by custom (e) .

§ 797. The possession and management of the propeity Borrowing and
of a religious endowment belong to the manager, dharma- alienations
karta oi shebait and this carries with it the right to bring
whatever suits are necessary for the protection of the properly.

He IS bound to do whale vei is necessary for ihe benefil or
preservalion of ihe properlies of ihe idol. Il is iherefore
compelenl foi the managei, shebait or dhaimakarta to
incur debts and boirow money foi the propel ex-
penses of keeping up the religious worship, repairing
the temples, or other possessions of the idols, insti-
tuting or defending hostile litigious attacks and to
prevent the endowed properties from being brought to
sale in execution of decrees binding upon the institution (/).

The power however to incur such debts must be measured by

(c) (1933) 60 Cal., 452 F.B., Shibessouree Debia v. Mottooroo
Nath (1870) 13 M.I.A., 270; Jagadindra Nath v. Henianta Kumari
(1904) 31 I.A., 203, 32 Cal, 129; Ratnendralal Muter v. Corpn.
of Calcutta (1914) 41 CaL, 104 (shebait, only a manager) ;

Rangacharya v. Guru Revti A.I.R. 1928 All., 689; Nagendranath Palit
V. Rabindra Nath (1926) 53 Cal., 132.

(d) Kumaraswami Aban v. Lakbhmana Gounden (J930) 53 Mad.,

608 (where the pujari was allowed to spend the surplus income on him-
self) , (1870) 13 M.I.A., 270 supra (rents) , Sri Mahant y, GovindacharluT
(1935) 68 M.L.J., 295 (archakaS remuneration by a share of offerings
valid) ; Manohar Ganesh Tambekar v. Lakshmi Ram (1888) 12 Bom.,

247, affd. in 26 T.A , 199, 24 Bom , .50; Girijanund Datta v. Sailajanund
Dutta (1896) 23 Cal., 645 (coins and metallic articles) ; Sri Venkata-
ramanaswami Temple v. Ramaswami (1937) 2 M.L.J., 893 (where it
was held that the archakas were entitled to hundi collections). A
shebait has no power to levy fees from devotees who want to enter a
temple. Asharam Ganpatram v. Dakore Temple Committee (1920)

44 Bom., 150.

(e) Gangadhara Mudali v. Doraisami Bhattar (1937) M.W.N., 975.

(/) Prosunna Kumari v. Golab Chand (1875) 2 I.A., 145; Konwur

Doorganath v. Ram Chunder Sen (1876) 4 I. A., 52, 2 Cal., 341;

Jagadindra Nath v. Hemanta Kumari (1904) 31 I. A., 203, 32 Cal., 129;

Nallayappa v. Ambalavana (1904) 27 Mad., 465, 473; Nagendra Nath
Palit V. Rabindra Nath (1926) 53 Cal., 132; Venkataraman v. Siva-
guiiinatha A.I.R. 1933 Mad., 639.

61

930

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

Benefit of
the estate.

the existing necessity for incurring them (g). The authoiity
of the managei of an idol’s estate would appear to be in
this respect analogous to that of the manager for an infant
heir whose power to alienate can only be exercised rightly
in a case of need or for the benefit of the estate (h) .

A debuttar estate may theiefore be mortgaged to secuic
the repayment of money borrowed and applied to prevent its
own extinction by sequestration. For an absolute alienation
of debuttai property, there must, it would seem, be an
imperative necessity constraining the managei to make it (i).
In these matters, it is only the immediate, not the i emote
cause, the causa caiisans of the boirouing which has to be
consideied (y). The constiuction of buildings for the recep-
tion and accommodation of visitois oi of dining halls for
feeding pilgiims are necessities (^)

S 798 No indication is to be found in any of the cases
as to what is in this connection the piecise nature of the things
to be included undei the description, ‘benefit of the estate’ (/).
The preservation, however, of the estate fiom extinction, the
defence against hostile litigation allecting it. the protection of
it or poitions fioni mjurv oi deterioration bv inundation,
these and such like things are held to be benefits ( m) .
But a managei would not be juslihed m selling debuttar land

(g) JSiladn Sahu v Chaturbhuj Das (1926) 53 l.A , 253, 6 Pal.
139, Lakshmindrathirthasuamiar \ Haghavendra Rao (1920) 43

Mad, 795.

ih) Srimath Daivasihamam v ISloor Mahomed (1908) 31 Mad, 47;
Sheo Shankar v Ram Shetiak (1897) 24 (.al , 77, Ramprasanna v
.Secy of State 11913) 40 Cal, 895, Rat hint Singh v Ganpat Rai A.I R
1937 Ldli , 660 V enkataraman \ Siiagiiriinatha AIR. 1933 Mad.,
639 (mon>y boi rowed to keep up daily worship, thougli shortage of
money is duo to bad management) , Premdas v Sheo Prasad AIR 1934
Nag, 222 (discharge of prior mortgage and payment of legitimate
expen‘«es of temple).

(l) Palaniappa (hell) v Srimath Denasikamon) (1917) 44 J.A ,
117, 40 Mad, 709, 719, see Anantaknshna Shostii v. Prayag Das
119371 1 Cal, 84, wheie all the cases are discussed; V enkataramona
Ayyangar v Kastiin Ranga (1917) 40 Mad, 212, 221 F.B., per Seshagin
Ayyar, J

(j) ISiladn Saha v Chuturhhuj Das (1926) 53 lA, 253, 6 Pal,
139.

(A) V ibhudapriya v Lakshniindiu (1927) 54 lA, 228, 50 Mad.,

497.

(/) Hunnoomanpersaud s (1856) 6 M T A., 393, 423, 424,

Prosunno Kiimari Dcbya v. Golab (hand (1875) 2 l.A, 145, 151,
152, 14 B.L R., 450, 469, Konwur Doorganath Roy \ Ram (Juuider
Sen (1876) 4 I.A., 52, 62, 64, 2 Cal, 3U, 352 3.

(m) Hossein Alikhan v Mahant Rhagban (1907) 34 (.al , 249;

Kedar Nath v Jagarnath A.I R. 1924 Pat., 355 , see Panchakshan v.
V enkataratnam (1935 ) 58 Mad, 160 (for needless proceedings,

dharmakarta personally liable for costs) .

PARAS. 798-800.] manager’s powers.

931

for the purpose of investing the price of it so as to bring in
more income (n).

§ 799. It is beyond the powers of a manager to grant a
permanent lease at a fixed rent in the absence of unavoidable
necessity; for, to fix the rent, though adequate at the time,
in perpetuity in lieu of giving the endowment the benefit
of an augmentation of a variable rent from time to time
would be a breach of duty on the part of the manager (o).
In Palaniappa Chetty v. Sreemath Deivasikamony (p). Lord
Atkinson obseived: “Three authorities have been cited which
establish that it is a breach of duly on the part of a shebail,
unless constrained thereto by unavoidable necessity, to grant
a lease in perpetuity of debuttar lands at a fixed rent, however
adequate that rent may be at the time of granting, by reason
of the fart that, by this means, the debuttar estate is deprived
of the chance it would have, if the rent were variable, of
deriving benefit from the enhancement in value in the future
of the lands leased”. A trustee, however, can create proper
derivative tenures and estates conformable to usage {q).

§ 800. As the manager is subject to the obligation of a
trustee, he 'should not however puichase any property belong-
ing to the endowment even though he pays an abundant pi ice
for it (r). All moneys expended in carrying out the obligations
imposed upon him as trustee, all expenditure incuried by him
in defending his position as the shebait unsuccessfully assailed.

(n) (1917) 44 LA., 147, 40 Mad., 709 supra, Nagendra Nath v.
Rabindranath (1925) 53 Cal., 132, Hemraj v. Nathii (1935) 59 Bom.,
525 F.B. See ante § 363.

(o) Shibessouree Debia v Mothooranath (1870) 13 M.I.A., 270,
275.

ip) (1917) 44 LA, 147, 155-156, 40 Mad., 709, 7191

(^) Abhiram Goswann v. Shyama Charan (1909) 36 LA , 148, 36
Cal., 1003; (1917) 44 LA, 147, 40 Mad., 709. (Former breathes of
trust would not amount to a usage justifying the grant of a permanent
lease); Vidyavaruthi v. Baluswami (1921) 48 LA., 302, 44 Mad, 831;
Ramchandra v. Kashinath (1895) 19 Bom., 271; Sheo Sankar v. Rant
Sewak (1897) 24 Cal., 77; Muthusamier v. Sreemethanidhi (1915) 38
Mad., 356; Jai Krishna v. Bhuk Lai (1921) 6 P.L.J., 638; Manohar
Maker jce v. Bhupendranath (1933) 60 Cal., 452, 495 F.B.; Bhabhani
Charan v. Suchetra A.I.R. 1930 Cal., 270 (transferable and heritable
lease with no fixed rent, valid) ; Nandalal v. Arunchandra (1935 ) 41
C.W.N., 464 (monthly tenancy) ; Mahant Ramdhany, Mt. Parbati (1937)
16 Pat., 476, but see Raman s.Karanakaran A.LR. 1933 Mad., 852 (where
necessity was held to be made out). The High Court has no juris-
diction to give directions in respect of debuttar property to a shebait
or to give him leave to alienate such property on the ground of
necessity. Sree Sree Ishaar Narayan Jai v. Soler [1937] 2 Cal., 133.

ir) Peary Mohan Mukherji v. Manohar Mukherji (1921) 48 I.A.,
258, 48 Cal.. 1019.

Permanent
leases invalid.

Obligations
of manager.

932

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXll,

he is entitled to be reimbursed from the trust estate. This right
of indemnity is incident to his position as trustee and the
liability in respect of that indemnity is a charge on the
estate ( 5 ).

It is the duty of a dharmakarta or manager or shebait to
maintain the customary usage^ of the institution and if he fails
to do so, he is guilty of a breach of trust and still more so if
he deliberately attempts to effect a vital change of usage and
to make it binding on the worshippers by obtaining the decree
of a Court to establish it (t).

Liability to ^ shebait, manager or dharmakarta is bound to keep true

account. and correct accounts of all moneys received and disbursed (m) .

A trustee or a shebait cannot delegate his authority, as
fiducial) duties cannot be the subject of delegation but it is
open to him to appoint a sub-agent; such appointment must
only be as a jneans of cariying out his own duties himself
and not for the purpose of delegating those duties by means
of such appointment (v).

Posijio^of § gOl. As regards the class of institutions known as

of^a math. maths, particularly in South India, there have been conflicting

views as to whether the head of a math is a trustee {w) or a
corporation sole {x). It is now settled that he is neither the
one nor the other; he is simply the manager of an institution
with wider powers than those possessed by a dharmakarta,

(5) 4^eun Mahun Mukherji v. Naivndranuth (1910) 37 J.A., 27,
37 Cal., 229 P.C.; Narayanan Chettiat v. Lahshmana Chetti (1916) 39
Mad., 456.

(f) Sanharalinga Nadan v. Rajawaia Dorai (1908) 35 I.A., 176,
31 Mad., 236 affirming (1902) 12 M.L.J., 355; Krishnasami v. Samaram
Singararhari (1907) 30 Mad., 158 (alteration of namam). In Subba-
rayaloo v. Ranganatha (1938) 1 M.L.J., 530, it was held that the
term ‘all Vaishnava's of the Thengalai sect’ in the scheme relating to
Sri Parthasarathi Temple, Madras, was comprehensive enough to
include untouchables of that sect so as to enable them to vote at
the election of dharmakartas and that the absence of any usage to
that effect was not fatal.

(«) Thackersey Dewraj v. Hiirbhum Nursey (1884) 8 Bom., 432;
Manohitr Ganesh v. Lakshmi Ram (1888) 12 Bom., 247; Jugalkishore
V. Lakshmandas (1899) 23 Bom., 659.

(i>) Gopal Shridhar Mahadeb v. Shasheebhushan Sarkar (1933)
60 Cal., Ill; Bonner }i v. Sitanath Das (1921) 49 I. A., 46, 49 Cal.,
325; Farasurama v. Thirumal Row (1921) 44 Mad., 636.

(w) Giyana Sambandha v. Kandasami (1887) 10 Mad., 375; Bala-
swamy v. Venkataswamy Naicken (1917) 40 Mad., 745, 748. See also
Kailasam Filial v. Nataraja (1910) 33 Mad., 265 F.B,

(.r) Vidyapurna v. Vidyanidhi (1904) 27 Mad., 435.

PARAS. 801-802.] LIMITATION FOR SUITS.

933

manager or trustee of a temple (y) . In Vidyavaruthi v. Balu-
sami Aiyar, the Privy Council have held that the head of a
math is not a trustee with regard to its endowments, save as to
any specific property proved to have been vested in him for
a specific and definite object ( 2 ). They added: “Called by
whatever name, he is only the manager and custodian of the
idol or the institution. In alinpst every case he is given the
right to a part of the usufruct, the mode of enjoyment and
the amount of the usufruct depending again on usage and
custom. In no case was the property conveyed to or vested
in him, nor is he a “trustee” in the English sense of the term,
although in view of the obligations and duties resting on him,
he is answerable as a liustee. in the general sense, for mal-
administration”.

Apart from a case of necessity, he is incompetent to create
any interest in the math property to endure beyond his
life (a) . Unlike the managei of a religious or charitable
institution, the head of a math has ample discretion in the
application of the funds of the math but always subject
to certain obligations and duties governed by custom and
usage (fc). The disciples of a math have sufficient ‘interest’
to maintain a representative suit not only for a declaration
of the invalidity of an improper alienation of the math pro-
perties by the head of the math but also for a decree
directing possession to be given to the head of the math for
the time being (c) .

§ 802. Special rules of limitation have now been enacted
in lespect of suits foi the lecovery of immovable and movable
properties which have been alienated by the managei Not-
withstanding that in law a manager of a religious or a
charitable institution is not an expiess tiustee, for the
purpose of the Limitation Act, the propel ty comprised ii\ a
Hindu religious or charitable endowment is, by section 10 oj

(>) Vidyavaruthi v Balusann (1921) 48 I. A., 302, 44 Mad., 831;
Kailasam PiUai v. Nataraja (1910) 33 Mad., 265 F.B. In Ram Prakash
Das V. Anand Das (1916) 43 1 \ , 73, 4.1 Cal., 707, it wa^ said to be
an ownership in trust

iz) (1921) 48 I.A., 302, 44 Mad., 831, 839.

(rtr) (1921) 48 T A , 302, 44 Mad, 8.31 supra

(b) Vibhudapriya v Lakshmindra (1927) 54 I.A., 228, 236, 50
Mad., 497, Vidyavaruthi v. Balusami (1921) 48 I.A , 302, 312, 44
Mad., 831.

(r) Chidambaranatha Thambiran v. Nallasiva Mudaliar (1918) 41
Mad., 124 ( Dll armapuram math). For similar right of the worshippeis
of a temple, see Subramania Aiyar v. Nagarathna Nauker (1910) 20
M.L.J., 151 (temple) , V enhataramana Ayyangar v Kasturi Ranga
(1917) 40 Mad., 212 F.B : Vadlamudi Sastrulu v. V enkataseshayya
A.f.R. 1928 Mad., 614.

I.iinitation
for suits.

934

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

to ‘^et aside
alienations

to recover
properly.

Alienation
valid for life

the Indian Limitation Act, 1908, as amended by Act I of
1929, deemed to be property vested in trust for a
specific purpose and the manager is to be deemed the
trustee thereof The result is that as against him and
his legal representatives or his assigns, not being assigns
for valuable consideration, a suit to follow the trust property
or its proceeds or foi an account of such piopeity or proceeds
IS not barred by any length of time.

A suit to set aside a transfer of property for value made
by a managei of a leligious oi charitable endowment is
governed by ai tides 134-A and 48-B of the Limitation Act
preset ibing periods of twelve and thiee yeais, according as
the propel tv is immovable or movable fiom the time when
the tiansfei becomes known to the plaintiff. These ai tides
1 elate to suits by peisons inteiested in the endowmei>t to set
aside alienations made bv the managei ( )

A Sint by the managei of a religious or chaiitable endow -
menl to lecovei possession of immovable property comprised
in the endowment which has been tiansfeired, oi of movable
])iopeily which has been sold, by a pievious managei for a
valuable consideiation must be brought within twelve yeais
fioin the death, lemoval oi lesignation of the tiansfeior or
of the sellei nndei articles 134-B and 134-C of the
Indian Limitation Act Even piioi to the above changes,
il was held that an invalid alienation, such as a peimanent
lease, was good foi the life of the alienot and adverse pos-
session commenced to lun against his successors and the
institution, undei article 144 of the Indian Limitation Act,
1908, only from the death or othei teiniination of office of
the tiansfeior (df) .

It was supposed that a different rule prevailed as regards
piopeities belonging to a temple oi to a family idol as distin-
guished from properties belonging to a math Quite recently
m Ponnamhala Desikai v Periyanan Chetti, the Privy Council
have held that there is no such distinction and even m the case
of an invalid alienation by the dharmakarta of a temple,

(1918) 41 Mad. 124 supra, V enhatarainana v. Kastunranga
(1917) 40 Mad, 212 FB

{(I) Vidyavaruthi v Baliisami (1921) 48 I A , 302, 44 Mad., 831;
Ram Charan Das v Naurangi Lai (1933) 60 I A , 124, 130, 12 Pat.,
251, Abhiram Goswami v Shyania Charan (1909) 36 lA, 148, 36
Cal, 1003, Muthiisamier v Sri Methanithi Swamiyar (1915) 38

Mad, 356, V idyaparna v Vidyamdhi (1904) 27 Mad, 435, Narsayn
V V enkataramana (1912) 23 MLJ, 260, Mahomed v. Ganapat (1890)
13 Mad, 277; Jamal Saheb v. Murugayya Swami (1886) 10 Bom.
34, Sivaprakasa v. Mamckam (1933) 64 M.L.J , 577, A.I.R. 1933
Mad, 481.

PARA. 802.]

LIMITATION FOR SUITS.

935

adverse possession would begin to run against his successors
or the institution only from the termination of the tenure
of oflSce of the alienor (e). Where the transfer is not a
private sale or lease but an execution sale, it has been held
that adverse possession begins to run from the date* of the
sale or delivery of possession (/).

•

In Vidyavaruthi v. Balusami and in Ponnarnbala Desikar
V. Periyanan Chetti, it was further held that in the case of a
permanent lease, acceptance of rent by a successor of the
transferor who made the invalid alienation would create a
new lease for the life of the successor so that adverse posses-
sion could run against the institution only on his death (g).

Where however no such infeience of a new lease could be
made, the possession would be adverse fiom the teimiiiation
of the office of the tiansferoi (//). Where howevei a temple
and its propeilies oi a math and its properties are sold,
the alienation will not be good for the life of the transfeioi
and adverse possession will commence to run fiom the date
of the alienation as it is a desliuction of the entire trust (i).

Similarly where the office of tiustee or dharmakarta is Adverse
iransfened, the aiticle applicable will be article 124 of the
Indian Limitation Act (/). A trusteeship with power to
appoint a successoi is an estate well-known and lecognised
by law and can be prescribed for fA;).

(c) (1936) 63 I A, 261, 275, 59 Mad., 809, 818, 819, explaining
Nainapillai Marat (n at v Ramanathan (Mivttiar (1923) 51 I.A , 83, 47
Mad , 337

(/) Subbaiya Randaiam v Md Miistapha Maracayar (1923) 50
I \ , 295, 46 Mad . 751

ig) (1921) 48 I A, 102, 44 Mad, 831, (1936) 63 I A , 261, 278,
59 Mad , 809. 823, 824

(h) (1936) 63 1 A , 261, 59 Mad , 809 supra, Ishtvar Shyam Chand-
Jill V Rani Kanai Chose (1910) 38 I.A., 76, 38 Cal., 526.

(/) (1921) 48 I.A., 302, 44 Mad, 831 supra. Ram Charan Das
V. Naiirang TmI (1933) 60 1 A , 124, 12 Pat, 251 distinguishing Gnana-
sambandha v. Vein (1899) 27 I.A., 69, 23 Mad, 271 and Damodar Das
V Lakhan Das (1910) 37 1 A., 147, 37 Cal., 885, Ram Lagan v. Nandi-
pat Mahton, AIR. 1938 Pat, 143, Alam Khan v. Karuppannaswami
(1937) 47 ML.W. 165

(y) Gnanasambandha v Vein (1899) 27 I A., 69, 23 Mad, 271;
Ram Plan v. Nandlal (1917) 39 All., 636; Nathe Pujan v. Radha
Binode (1918) 3 PLJ, 327, sfe Jagannadha Row v. Rama Doss
(1904) 28 Mad., 197, Siippabhatter v. Suppu Sokkayya (1915) 29
M.L.J., 558; Lilavati v. Rishun Chobey (1907) 6 C.L.J., 621.

(A) Annasami Pdlai v. Ramakrishna Mudaliar (1901) 24 Mad.,
219, Veeraraghava v. Srinivasa (1912) 23 M.L.J., 134; Chidambaram
Chetti V. Minammal (1900) 23 Mad., 439; Ramanatha v. Murugappa
(19(^) 27 Mad., 192.

936 '

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

Setting aside
of alienations.

§ 803. An alienation of endowed property made by a
manage! or dharmakarta of a religious or charitable institu-
tion or the head of a math can be set aside not only by his
successor but also by persons interested in the endowment
even during the lifetime of the alienor (/). Whether in such
a case, the alienation can be declared void in toto or void
only bevond the life or tenure of office of the alienor is not
yet settled. Where the alienation is by way of a peimanent
lease at an adequate lent, it will be good for the tenuie of
office of the alienor and will be declared to be invalid beyond
the teiinination of office; for the institution will have the
benefit of the rents even duiing the alienor’s tenuie of office.
Wheie howevei the alienation is by way of sale oi gift or a
peimanent lease at a low I'ent it would seem on piinciple that
in the absence of necessity, it is liable to be set aside in toto,
Hut in Ram Chaian Das v. Nauian^i Lai, the Judicial Com-
mittee obscivTd that wheie a disposition of propeity is by
wav of an absolute giant, it would be good during the tenure
of office of the grantor {D) . But a sale or gift or a peimanent
lease at a low^ lent of the endowed property, especially
wheie it is of the bulk of the property, will virtually deprive
the institution, even during the life of the alienor, of the
income necessary for its maintenance and sei vices The view
expiessed in Naina Pillai Maiakayat v Rarnanathan Chettiar
retonciles many of the difficulties by making the alienation
good onl) as against the alienoi by wav of estoppel, leaving
It open to pel sons inteiested in the endowment to set it
aside in toto and to re-attach the piopeities to the institution
even during his lifetime (/“). But the dictum of the
Privy Council in Ponnamhala Desikar v Periyanan Chetty
with refeience to that case apparently assumes it to be a rule
of substantive law that in all classes of leligious institutions,
whethei they ‘aie maths or temples, the alienation would be
invalid only beyond the lifetime oi the tenure of
office of the managei (/M. 1’hese decisions weie all
given under the law as it stood befoie the amendment
of the Limitation Act in 1929. Now the amendment of sec.
10 and ai tides 134- A and 48-B of the Limitation Act, which

(/) Chidambarauatha v Nallasiva (1918) 41 Mad., 124.

(/i) (1933) 63 I.A, 124, 12 Pat., 251.

(/-) (1923) 51 lA, 83, 47 Mad, 337, Mahamaya v. Haridas
Haidar (1915) 42 Cal, 455, contra Subbarayudu v. Kotayya (1892)
15 Mad, 389, Sivaswami v Thiriimudi (1929) 57 M.L.J., 219, Bhaga-
icat V Bindeshwan (1930) A L.J , 964.

(/3) (1936) 63 I.A, 261, 59 Mad., 809, 819, Chidambara v.
ManickaminUai (1933) 64 MX J , 577.

PARAS. 803-805.] creditor’s remedies.

937

make the manager of the endowment a trustee in whom the
property is vested, have not only effected a change in the
law of limitation but have given statutory recognition to the
view that the manager is in law a trustee, at least for the
purposes of alienations, and for the purpose of following the
property of the institution. They recognise the right of per-
sons interested in the institution to have the alienation made
by the manager set aside altogethei during his life (/M. It
would seem theiefore that an alienation will not bind the
institution, in the absence of necessity or benefit, even during
the tenure of office of the alienor.

^ 804. In the case of an alienation made by the head
of a math oi other religious institution, the burden lies upon
the alienee to prove eithei that the debt was incuiied for
necessaiy expenses of the institution itself or that he made
proper and bona fide inquiries as to the existence of such
necessity (///). 'Fhe lules applicable to alienations of the
manager for an infant heii are equallv applicable
(§§361-366). Wheie, howevei, holdei aftei holder of a
math recognises and deals with a debt as one binding on
himself and his successors oi wheie with lapse of time, the
parties to the transaction have died or disappeaied, the Court
is moie easily satisfied that the debt was pioperly incur-
red (/i). Where the validity of a permanent lease granted
by a managei comes into question aftei a veiy long lime
so that it is not possible to asccitam what weie the circum-
stances undei which it was made, the Couit will assume that
the grant was made for necessity so as to be valid (o).

§ 805. In a suit to lecover a simple money debt, incurred
by the sanyasi head of a math for its necessaiy purposes,
where theie is no indication that he intended to •make himself
peisonally liable, the propeities of the math can be made
liable whethei the suit is brought duiing the lifetime of the

(/*) The wording of 134-A and 48-B is not like that of

article 125 which recognises the validity of a widow’s alienation for
lier life.

(m) Kontvur Doorganath v. Ram Chunder (1876) 4 I. A., 52, 2 Cal.,
341; Venkataraman v Sivagurunatlia A.i.R. 1933 Mad, 639 (enquiry
by lender). §371.

(n) Murugesam v. Manika Vasaka (1917) 44 I.A , 98, 40 Mad.,
402; Magniram Sitaram v. Kabturbhai (1921) 49 1 A., 54, 46 Bom.,
481.

(o) Magniram Sitaram v. Kasturbhai (1921) 49 I.A, 54, 46 Bom.,
481: Chockalingam Piliai Mayandichettiar (1896) 19 Mad., 485;
Raman v, Karunakara A.I.R, 1933 Mad., 852,

Even during
life.

Bui den of
proof.

Creditors’
remedies
for unsecured
loans.

938

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

Decrees
against
managers
and heads.

incumbent who incurred the debt or his successor {p). In
such cases the decree should provide as was held in Niladii
Sahu V. Mahant Chaturhhuj Das (q), that on default of pay-
ment by the successor, a receivei may be appointed of the
income of the math so that his beneficial interest may be
applied to discharge the decree after providing for the
expenses of the math, the peiformance of ceremonies and a
leasonable piovision foi the maintenance of the head of the
math. In Vibhudapnya v Lakshmindra, wheie the head of
a math boi lowed monevs foi the expenses of a periodic
festival, foi the feeding of all Brahman pilgiims and foi
icbuildmg a dining hall, it was held that they were propei
purposes The debts weie held to be Innding on the suc-
(essor, though they weie onl) simple money debts and no
( haige was ( lealed (/ )

^ o()6 A deciee passed in a suit against a shebait,
inanagei oi dhaimakarla, as lepiesenting an idol oi leligious
oi chaiitable institution is binding on his successois, piovided
It was passed without any fiaud oi collusion The leason is
that the successois m offue fonn a continuing lepiesentation
of the propeil) of the idol oi the math (s) It has been
held that the head of the math lepiesenls it even when the
suit IS brought on a piomissoiy note executed by him and
that he cannot question the validity of the transaction The
binding nature of the decree in such cases is not affected by

(p) Lahshrnindra ^ Ras^haveudra (1920) 4 3 Mad, 795, Daivabiha
mam \ Nooi (1908) .31 Mad. 17, Shankar v \ enkappa
(1885) 9^Bi)in, 422, I ibhndapnya v Lakshmindra (1927) 54 I.A ,
228, 50 Mad. 197, Sundarcsan v \ rsvunadha (1922) 45 Mad, 703
distinguishing Sivanunathc \ Snnnasa (1916) .32 MLl, 259 See
Shai/endranath v Hade Kaza Mane (1932) .59 ( al , 586, 608 Regard-
ing debts of a de facto manager, soe baminatha \ Purushottama
(1893) 16 Mad. 67, Kasim Saiha \ Sitdhtndta (1895) 18 Mad, 359

(q) (1927) 53 I A 2.53. 6 Pal, 139, \ ibhudapn\a \ Lakshmindra
(1927) 54 lA, 228, 50 Mad, 497

(O (1927) 54 1 \ , 228. 50 Mad, 497, levusing (1923) 44 MLJ,
187

(5) Prosunno Kuinan v Colab Chand (1875) 2 I a\ , 145, 14 Beng
LR, 450, Cora (hand \ Makhan tjil (1907) 6 CLJ, 404, Lilabati
V Bishun ( hobev (1907) 6 ( LJ, 621, iharula Das v Jalandhar
(1912) .39 Pal, 887, 893, I'pendra Nath v Kiisuni Kiirnon (1915) 42
Cal, 440, Bai Meherbai v Magaiuhand (1904) 29 Bom, 96, Gidab-
bhai V. Sohanodasji (1928) 52 Bom, 431, Sudhindra v Budan (1886)
9 Mad, 80, Madhnvan \ Keshavan (1887) 11 Mad, 191 But
It has been held that a decree passed e\ parte is not
res judicata as against a successoi, Siibramama \ Vaithi-
linga (1931) 60 MLJ, 590 Whore a decree m passed against a
person as manager, execution can be had only against the properties^of
the endowment (1915) 42 Cal, 440, 445 supra.

PARAS. 806-807.] SUCCESSION TO MATHS.

939

the fact that it is based on a compromise (/). But where a
decree is made against the tiustee personally, the corpus
of the trust estate cannot be sold to satisfy the claim of the
judgment creditor (u).

§ 807. Succession to the office of mahant or head of a
math is to be regulated by the custom of the particular math
and one who claims the office hy right of succession is bound
to allege and prove what the custom of the particular insti-
tution is, for the only law regulating succession to such insti-
tutions IS to be found in the custom and piactice of that
institution (v) , As was observed in Vidyapuina Tiithaswami
V. Vidyanidhi Tirthasimmi, in most cases, especially in South-
ern India, the successor is ordained and appointed by the head
of the math during his own lifetime and in default of such
appointment, the nomination ina) lest with the head of some
kindled institution or the successor may be appointed by
election by the disciples and followeis of the math oi in the
last instance by the court as representing the sovereign (v'^)
Where the head of a religious institution is bound to celibacy,
it is frequently the usage that he nominates his successor by
appointment during his own lifetime, or by will (?<;). Such
a power of nomination must however be exercised not cor-
ruptly 01 for ulterior leasons, but bona fide and in the
interests of the math; otherwise the appointment will be
invalid (at). Sometimes this nomination lequiies confirnia-

(t) Mamkka Vasaka Desikar v Balagopalaknshna (1906) 29 Mad,
553.

(u) Hishen Chand Basawat \ Nadu Hossein (1887) 15 I.A., 1,
15 Cal., 329, Ram Krishna v Padma Charan (1902) 6 C.W.N., 663.

(c) Satnani v Bhagwan AIR. 1938 P.C , 216, Greedharee v.
Niiiido Kishore (1867) 11 MIA, 405, Miithii Ramahnga v. Pena-
nayagam (1874) 1 LA, 209, Janoki v. Gopal (1882) 10 LA, 32, 9
("al , 766, Genda Pun v Chatar Pun (1887) 13 I A , 100, 9 All, I,
Ramahngam v Vythihngam (1893) 20 I A , L50, 16 Mad., 490, Lahar
Pun V Purati Naih (1915) 42 LA., 115, 37 All, 298, Rrmi Parkash Das
V. Anand Das (1916) 43 LA , 73, 43 Cal., 707, Bhagabanv Raghunandan
(1895) 22 I A., 94, 22 Cal, 843, Jwala Das v Pit Sant Das A I.R.’

1930 P.C., 245, 34 CWN, 9.33 (mahant claimingj light to nominate
succcsst^)r mii«it prove it).

(vi) (1904) 27 Mad, 435, 457, per Bhashyam Ayyangar, J.

(tv) Hoogly V. Kishnamund S.D. of 1848, 253; Soobramaneya v.
Aroomooga Mad. Dec of 1858,33, Greedharee y Nundo Kishore (1867)
11 M.T.A., 405, 1 WR. (P.C), 25, Tnmbakpun v Gangabai (1887)
11 Bom, 514; Ramahngam v. Vythdingam (1893) 20 I A , 150, 16
Mad., 490, Annasami v. Ramaknshna (1901) 24 Mad., 219; Tint-
vambala Desikar v. Mamkkavachaka (1917) 40 Mad.. 177; Vidya-
purna v. Vidyanidhi (19041 27 Mad, 435; Bishambar Das v.

Mt. Phulgari (1930) 11 Lah., 673, Haridas Gangadas v. Rarndas A.I.R.

1931 Bom , 79, 32 Bom. L R., 1381 , Raghunath Das v Ganesh Das
A.I.R. 1932 AU^ 603 (practice of similar maths cannot be ignored).

(:r) Nataraja v. Kailasam (1920) 48 I.A., 1, 44 Mad., 283; Rama-
lingam v. Vythihngam (1893) 20 I A., 150, 16 Mad., 490; Ram
Parlgash Das v. Anand Das (1916) 43 I.A., 73, 43 Cal., 707; Vaidya-
natha v. Swaminatha (1924) 51 I. A., 282, 47 Mad., 884.

Devolution
of Mahant’s
office.

940

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXII,

Devolution of
managership.

lion by the members of the religious body Sometimes the
right of election is vested in them (y) , Where the head of
a math designated a person as his successor but died befoie
the successor could be formally initiated, it was held that
the designated person was entitled to succeed {z ) . The
powei of nomination cannot however be delegated {a ) .
Neithei the office of a mahanti noi the pioperty of math can
lie the subject of paitition (h) It has been held that one
who has been nominated as a junior pandarasannadhi to
succeed lo the headship of the math has, even during the
lifetime of the head of the math, a vested right of which he
(annot be depiived, except foi just cause (6M An ascetic
head of a math does not ipso jacto foifeit his office foi
immoiality but is liable to \ye lemosed tioni bis office on
j)ioof of bis immoial conduc t ( />- )

The giouncis of clisqualific*alion ic^cognisecl in flindu law^
will appl\ to holdeis of such oflict'^, the\ lemain unaffected
l>\ the Hindu fnhentance (Remo\aI of Disabilities) Act,
1928

^ 808 The devolution of the* ollice of shebail of an idol
01 of dhaimakaita of a temple oi managei of a chaiitable
endow'inent, upon the death oi teiniination of office of
tlie incumlient, depends upon the teims upon which it was
cieated, oi the usage of each paiticular institution, where
no expicNs deed of tiiist oi foundation exists (c) Wheie
nothing is said in the giant as to the succession, the

(>) Mohunt Gopal v Kerparam SD of 1850, 250, Narain v.
firindabiin 2 ST) 151 (192), Gossnin v Bissessiir 19 WR, 215,
Madho V Kamta (1878) I All, 559 Mahant Laharpiin v Mahant
Imuran (1915) 42 I A., 115, .17 All , 298 Deua Das v Shew Prasad
AtR 1929 Pal, .5.51, Satnam Singh v Bhagwan Suigh AIR. 1938
1* ( , 216, Sita l*rasad v Thahur Das (1870) 5 B.L.R , 73, Mahant
Hamji V. Laihhi Das (1902) 7 CWN, 145

(z) Krishnagin v. Shndhar (1922) 46 Bom, 653.

ia) Ramji v Lafhha (1902) 7 C W IV , U5

(6) Sethuramaswamiar \ Meniswamiai (1918) 45 T A., 1, 41

Mad , 296 Sop Ram Charan Ramanuj Das v Gohind Raniam Das
(1928) .56 I A, 104, 31 Bom L R., 71.5, reveismg (1925) 52 Cal, 748,

(1925) 29 ( WN, 931, ATR 1925 Cal, 1107 (where the

usage 111 a math consisting of several asthals is to have only one
mahant, a sepaiation of the office is impioper, unless there are special
circumstances justifying it).

(6^) Thiruvambala v Manihkavasala (1917) 40 Mad., 177

(62) (1917) 40 Mad, 177 supra

(c) Greedharee v Nund Kishore, Marsh, 573, affd (1867) 11
MIA, 428, 8 WR (P.C ), 25, Muttu Ramahnga v* Perianayagam

(1874) 1 I A, 209, Janoki v Gopal (1883) 10 I A , 32, 9 Cal, 766,

Genda v Chattar (1887) 13 I A , 100, 9 All, 1, Appaswami v Nagappa
(1884) 7 Mad , 499, Bimalabala Sinha v. Deb Kinkar A.I.R. ^932
Pat., 267.

PARA. 808.]

SUCCESSION TO OFFICES.

•941

right of management passes by inheiitancc to the iiatuial
heirs of the donee, according to the rule, that a grant
without words of limitation conveys an estate of inherit-
ance (d), unless such devolution is inconsistent with, or
opposed to the purpose the founder had in view in creating
the trust (e) or where the office is descendible to a single
heir (/). The property passes^ with the office, and neither it
nor the management is divisible among the members of the
family (g). Where the right to manage charities, without
any beneficial interest in the chanty properties, is vested in a
joint Hindu family, the senior male member of such a family
IS, until a paitition is effected, entitled to exercise the right
of management vested in the family on its behalf (h) ,

Where the management can, without detiimenl to the
tiust, be held by turns, it is open to the rnembcis of the famil>
to agiee to oi foi the couit to decree management by turns
or in some settled oidei and seipiencc ( 7 ) . Sometimes the
constitution of the body vests the management m seveial,
as representing different inteiests, oi as a check upon
each other, and any act which alters such a constitu-
tion would be invalid!/). Wheie the office lames with

(d) Chutter Sein's case, 1 S.D 18 (239), Rainachor v. Vvnkala

Row A.I.R. 1938 Mad., 661 Set Tagore case (J872) 9

B.L.R. (P.C.), 395, l.A. Siipp. Vol. 47, per (uriam, 9 Cal., 79,
Nanabhai v. Shnman Goswami (1888) 12 Bom, 331, Gnanasambandu

V. Vela Pandaram (1899) 27 1 A , 69, 23 Mad As lo cschea! to Oown,
bee Secretary of State v. Haibattao (1904) 28 Bom, 276, Sethurania-
bwamiar v. Meruswann (1917) ^5 l.A , 1, 7, 41 Mad., 296, 303,
on appeal from (1911) 34 Mad, 470, Astfa Mohan v. Nirode Mohun
(1920) 47 I A., 140, 24 C.W.N , 794 ( |oint sljehails) , Sri Giidharji v.
Roman Lalji (1889) 16 l.A., 137, 17 (.’al., 3, Mohan v. Madhusudhan
(1910) 32 All., 461, Sheo Prasad v Aya Ram 1907) 29 All., 663

(e) Mohan Lalji v Gordhan Laljt (1913) 40 lA, 97, 35 All,
283.

(/) AyiswaryanandajL v Sivaji (1926 ) 49 Mad, 116.

ig) Jaafar v. A]i (1864) 2 Mad H.C., 19, Kumartmvami v. Rama-
linga Mad. Dec. of 1860, 261, Tnmbak v. Lakshman (1896) 20 Boni^
495.

(A) Thandavaroya v. Shunmugam (1909) 32 Mad., 167, (1917)
45 I.A., 1. 41 Mad.. 296 supra, (1926) 49 Mad, 116, 146.

(t) Ramanalhan Chetty v Miuugappa Lhetty (1906) 33 l.A., 139,
29 Mad., 283 affirming (1904) 27 Mad, 192, Aviswaryanandaji v
Sivaji (1926) 49 Mad, 116, 147, Meenakshi v. Somasundara

(1921) 44 Mad., 205, Alasinga Bhattar v. Venkata Sudarsana Bhattai
(1936) 70 M.L.J., 424, Rat Siindan Dasya v. Benode Behary (1935)
39 C.W.N., 1264, Nubkissen v. Hurrischunder 2 M. Dig., 146. Sec
Anundmoyee v. Boykantnath 8 W R., 193, Ramsoondur v. Taiuck 19

W. R., 28, Mitta Kunth v. Neerunjun 14 B.L.R., 166, 22 W.R , 437,
Mancharam v. Pranshankar (1882) 6 Bom , 298

(/) Rajah Vurmah v. Ravi Vurmah (1877) 4 l.A, 76, 1 Mad., 235;
see Teramath v. Lakshmi (1883) 6 Mad., 270; a fluctuating commun-
ity of persons may be the managers of endowments. Secy, of State v
Haibatrao (1904) 28 Bom., 276; Muthiah Chetti v. Periannan (1916)
4 ^l.L.W., 228 (caste management).

942

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXIl,

Alienation of
trusteeship.

It the light to leceive offerings, a member of the family
may sue to establish his light and to have a period fixed for
his turn of management ( A,) .

^ o()9. A trustee cannot sell, lease oi otherwise alienate
the light of management, though coupled with the obliga-
tion to manage in (onformit) with the It lists annexed
theieto (/), noi is the light 'saleable in execution under a
decree irn) In Rajah Vurma Valia \ Ravi Vuimah Kunhi
Kiitty, the Pnvy Council obseived that even if a custom
saiKtioning not merely the transfer of a tiusteeship but the
sale of a tiusteeship foi the pecuniaiy advantage of the
liustee wdis set up, they would be disposed to hold that that
circumstaiKc alone would justify a decision that the ('ustom
was bad in law (n). Neithei a hereditary dharmakarta nor
shebait nor the head of a math has a right to alienate his
office by sale, gift oi will (o), noi can he appoint his suc-
cessoi, unless authorised to do so by the deed of endowment
ui b) the usage of the institution ip).

{k) Pramatha Nath v Pradyumna Kumar (1925) 52 I A., 245, 52
Cal., 809, appiovmg Mitta v. Neeriinjan (1874) 14 B L.R , 166;
Mancharani v. Pranshankar (1882) 6 Bum, 298, Lunba v Rama
(1889) 13 Bom , 548 But one of two shebaits cannot sue for his
share of the royalty <1ik lo a deity under a lease. Barabam Coal
Concern Ltd v Gokul (1934) 61 I.A , 35, 61 Cal, 313.

(/) Rajah Viinnah v Ravi V iirmah (1876) 4 I.A., 76, 1 Mad., 235,
oveiruling Ragunada v Chtnnappa 4 Mad Rev. Reg, 109, Rama
Varma v. Raman Nair (1882) 5 Mad, 89, Kannan v. Nilakundan
(1884) 7 Mad., 337, Lakshmanabwami \ Rangamma (1903) 26 Mad.,
31, barkum Abu \ Rahaman Buksh (1897) 24 Cal., 83, Gnana-
sanibanda v Vein Pandaram (1899) 27 I.A., 69, 23 Mad, 271;
Mahamaya Debi v Haridas Haidar (1915) 42 Cal, 455;
Alasinga ^ Venkata Sudarsana (1936) 70 M.LJ., 424, Subramania
V Natesa (1938) 1 MLJ, 517, Ramlakhan Tiwari v Ramlagan
\IR 1933 Pat, 449, Prayag Dass v Kriparam (1907) 8 C.L.J.,
499, Gobinda Ramaney Das \. Ramacharan Ranianey Dai> (1936)
63 Cal , 326 The right to receive offering, if independent of the
light to render service, can be transferred Balmukund v. Tula
Ram (1928) 50 All., 394 A vrilti may be alienated as a matter of
special local usage. Manjunath v. Shankar (1915) 39 Bom, 26,

following Rajaram v Ganesh (1898) 23 Bom , 131 As to yajman
vritti in Sind, see Kanayalal v. Lakhand AIR 1937 Sind, 237, Ram
Chand v. Uttam Chand A.I.R. 1937 Sind., 147.

im) Durga v. Chanthal (1881) 4 All., 81, Rajaram v. Ganesh
(1899) 23 Bom, 131

(n) Rajah Viirmah \. Ravi V urmah (1876) 4 I.A., 76, 1 Mad., 235
supra, Subramaniam v Natcsa A I.R. 1938 Mad, 713.

(o) Mahamaya Debt v Haridas Haidar (1915) 42 Cal., 455,
472, Rajeshivar MuUick v. Gopeshwar (1908) 35 Cal., 226 dissent-
ing from Mancharani v. Pranshankar (1882) 6 Bom., 298, Puran Lalji
V. Ras Bihari Lai (1922) 44 All, 590.

(p) Annaswaim v. Ramakrishna (1901) 24 Mad., 419; Ranjit Smeh

V. Jagannath (1886) 12 Cal., 375. ^

PARAa. 810-810 A.]

ALIENATION OF OFFICE.

•943

§ 810. But an alienation b> gift oi will of a religious
or secular office, without receiving any consideration, to a
person standing in the line of succession and free from
objections relating to the capacity of a particular individual
to perform the worship of an idol or do any other necessary
functions connected with it, may be valid (q). In the case
of archakas, such an alienation when made in favour of one
in the line of heirs of the alienor and when it is neither for
consideration, nor in any way opposed to or inconsistent
with the interests of the institution is valid it). In such cases,
the alienation of a religious office is in fact little inoie than
a renunciation of the right to hold the office and it is always
open to dll officeholder to resign his office oi to relinquish his
rights under a compiomise (s). It has been decided in
Calcutta that a private endowment of a family idol may be
transferied to another family, the idol being a pait of the
gift and the propeity continuing to be appropriated to its
benefit as befoie (t ) .

Where the tiansfei is foi value oi in favoui of a sliangei,
an alienation of the office is bad (ul

§ 810 A. An airangeinent for the remuneration of
archakas oi pu juris in a temple by a shaie of the offerings
or collections is a well known practice and is not invalid as
a permanent alienution of liust property (w^). Even

(q) Mamhuram v Prunshankar (1882) 6 Bom, 298, Silaranibhal
V. Sitaram (1869) 6 Bom. H.C, (A.CJ), 250, Annasami v. Rama-
krishna (1901) 24 Mad, 219, Nirad Mohim v. Shibadai^ (1909) 36
Cal., 975, (1935) 68 M.L.J., 295 infra, see Haridas Holdiir v. Cham
Chandra Sarkar (1933) 60 Cal, 1351

(r) Sri Mahant Prayag Doss v Govindacharlu A.l.R. 1935 Mad.,
220, 68 M.L.J., 295, 304-306 (custom of alienation).

(s) Satnarn Singh v. Bhagwan A.I.R. 1938 P.C. 216 affg. A.l.R.
1935 All., 198, Gins Chandra Saw v. Upendra Nath (1931) 35 C.W.N.,
768, A.l.R. 1931 Gal., 776, Savitn v F A, Savi (1937) 12 Pat., 359.

it) Khettiir Chunder v. Han Das (1890) 17 Cal., 557.

(//) Mahamaya v. Haridas Haidar (1915) 42 Cal., 455,

Kiippa V. Dorasanii (1883) 6 Mad , 76 (sale to one not in the
line of heirs, bad) ; Narasimma v. Anantha (1882 ) 4 Mad., 391;
Juggernath Roy v. Pershad Surmah 7 W.R., 266; Dubo Misser v.
Snnivas (1870) 5 B.LR., 617, Narayana v. Ranga (1892) 15 Mad.,
183 (must be only to sole next heir) ; Alagappa v. Sivaramasundara
(1896) 19 Mad., 211, Rajam Bhatta v. Singarammal (1919) 51 I.C.,
979, 36 M.L.J., 355; Raghiinath Vithal v. Piirnanund (1923) 47 Bom.,
529 (stranger) , Panchanan Banerjee v. Surendra Nath A.l.R. 1930
Cal., 180 (stianger; pecuniaiy benefit) ; Annadaprosad v. Mithilal
A.l.R. 1934 Cal., 650, 59 CLJ, 514 ( M ranger) , Prosonna Deb v.
Bengal Duars Bank Ltd. A.l R. 1936 Cal., 744; Kashinath v. Gangubai
A.I.R. 1931 Bom., 170.

(ai) (1935) 68 M.L.J., 295 supra dislg. (1917) 40 Mad., 212 F.B.
suprB,

Alienation of
a religious
office.

944

RELIGIOUS AND CHARITABLE ENDOWMENTS. [CHAP. XXlI,

Founder’t.

right

in the case of alienations of trust property, the
Judicial Conirnittee has not laid down a rule of absolute
prohibition. In Magniram Sitaram v. Kasturbhai (v), the
propriety of raising a presumption of legal origin, even in
the case of such transactions, where they are ancient, pro-
vided of course such a legal origin is practicable and reason-
ably capable of being presumed without doing violence to
the probabilities of the case, is recognised.

§ 811. Where a trust has been cieated, in default of
evidence that he has disposed of it otherwise, the law will
vest the tiust in the foundei and his heirs, unless there has
been some usage oi course of dealing oi some circumstances
to show a dilleient mode of devolution (iv) , or unless such a
mode would be iiicoiisistciit with the purpose of the founda-
tion (.V ) . Though a foundei is competent to lay down rules
to govern the succession to the ofiite of shebait oi managei,
he cannot eieate any estate unknown oi repugnant to Hindu
law, such as an estate-tail (y). Wheie the foundei has made

(v) (1921) 49 T A , 5i, 46 Bom., 481, Mazaffar al Musavi v. Jabeda
khatun (1930) 57 I.A., 125, 57 Cal., 1293, Alam Khan Saheb v.
Karuppaniiabwami (1937) 47 M L.W., 165, Miirugesa v. Manickavasaka
(1917) 41 1 A., 98, 40 Mad, 102, Sri Mahant v. Govindacharlu
11935) 68 M L J , 295.

iiv) Gossamev v Human LoHjec (1889) 16 lA, 137, 17 Cal., 3,
Jagadindra Nath \ Jiemanta human (1904) 31 I A , 203, 32 Cal, 129,
Jagannath Prasad v Runjit Singh (1898) 25 Cal., 354, Sheoratan v.
Ram Pargash (1896) 18 All, 227, Sheo Prasad v Aya Ram (1907)
29 All, 663, Mohan JmIji \ Madhsudan (1910) 32 All, 461,

Meenakshi A(hi \ Sornasundrani Pillai (1921)' 44 Mad., 205,
Chandranath \. Jadabendra (1906) 28 AIL, 689, Kali Krishna Ray v.
Makhan Lai (1920) 50 Cal., 233, Prakash Chandra Nag v, Subodh
Chandra 1 1937 J 1 Cal, 515, Gulab Dass v. Manohar Dass A.l.R. 1937
Oudh, 490, Radha Nath v. Shaktipado Mukerji A.l.R 1936 All, 624,
Giiiopada \ Mon Mohiin AIR 1936 Cal, 215, Ramachar v Venkata
Rao 1938 M.W N., 175, A.l.R. 1938 Mad., 661, Chandnka

Baksh \ Bhola Singh A.l R 1937 Oudh, 373, Ram Sundari
Dassya v. Benode Behary (1935) 39 C.W.N., 1264, Pramatha

Nath V Pradyumna (1925) 52 lA, 245, Gangacharan \.

Ram (jhandra (1928) 50 All, 165. Persoub furnishing additional
conluhulionb subbcquenl to the oiigmal endowment do not thereby
become founderb. Appasami v. Nagappa (1884) 7 Mad., 499, Anna-
sami V Ramakrishna (1901) 24 Mad., 219, (1889) 16 I. A.,

137, 17 Cal, 3 supra, Ananda Chandra v Brija Lai (1923)

50 (-al, 292, Prasanna Deb v Bengal Duars Ltd A.l R 1936
Cal , 744, wheie properiicb are purchased in the names of a mahant,
in the absence of contrary evidence, they belong to the endowment.
Sitaram Dass Bavaji v. H R. E, Board, Madras 11937] Mad., 197.

(x) Mohan Lalji v. Gordhan Lalji (1913) 40 l.A , 97, 35

All, 283; Sri Sethuramaswamiar v. Sri Meruswamiar (1910) 45 LA.,
1, 41 Mad . 296.

(y) Gnanasambandha v. Vein Pandaram (1899) 27 LA, 69, 23
Mad., 271, Gopal Chunder Bose v. Kartick Chunder Das (1902) 29
Cal., 716, Manohar Mukherjee v. Bhupendra Nath (1933) 60 Cal., 452

F. B., overruling Sreepati Chatter ji v. Krishna Chandra (1924) 41

G. L.J., 22, AIR 1925 Cal, 442, Kandarpa Mohan Goswami v. Akshay
Chandra Basu (1934) 61 Cal., 106 reversing (1933) 60 Cal., 706
(where a gift of shehailbhip was followed by a general power of appoint-

PAkkS. 8il-8l2.] CYPRES APPLICATION.

a disposition of the trusteeship outside his own family, but
the succession to the oflSce of trustee has wholly failed, it has
been held that the right of management reverts to the heirs
of the founder (z). A Full Bench of the Madras High Court
has held that it is competent to the founder’s heirs on such
failure to create a fresh line of trustees (a). But where
property has been dedicated to an endowment or trust by a
donor and he has thereby divested himself of all interest in
the property, then the line of succession of shebaiu or
managers laid down by him in the deed of endowment is
binding even on him and he cannot afterwards alter that rule
of succession, unless the deed of endownment reserves such
right (ft).

§ 812. Where a clear charitable intention is expressed. Cypres,
it will not be permitted to fail because the mode, if specified,
cannot be executed, but the law will substitute another mode
cypresy that is, as near as possible to the mode specified by
the donor. But there can be no question of an application
cypres until it is clearly established that the mode specified
by the donor cannot be carried into effect and that the donor
had a general charitable intention (c). The jurisdiction of
the Courts to act on the cypres doctrine upon the failure of a
specific charitable bequest arises whether the residue be given
to charity or not, unless upon the construction of a will, a
direction can be implied that the bequest, if it fails, should
go to the residue (d).

ment and by a gift over m default of appointment, the first gift was
held as an absolute gift). Ganah Chunder Dhur v. Lai Behary Dhur
(1936) 63 I. A., 448 reversing A.I.R. 1935 Cal., 284, 39 C.W.N., 46 and
affirming (1934) 61 Cal., 393; Gangaram v. Dooboo Mama A.I.R.

1936 Nag., 223. The donee may be an unborn person at the time of
the gift provided he is one who must come into existence within the
limits of the rule against perpetuities. §§ 753, 756.

( 2 ) Jai Bansi v. Chattar (1870) 5 B.L.R., 181, 15»W.R., 396, mb
nomine, Peet Koonwar v. ChiUtur; Han Dasi v. Secretary of State
(1880) 5 Cal., 228; (1896) 18 AIL, 227 supra; (1907) 29 AIL, 663^
supra; (1898) 25 Cal., 354 supra.

(a) Baidyo Gauranga Sahu v. Sudevi Mata (1917) 40 Mad., 612
F.B. approved in Vaidyanatha Aiyar v. Swaminatha Aiyar (1924) 51
I.A., 282, 292, 47 Mad., 884.

ib) Gawrikumari Dasee v. Ramani Moyi Dasee (1922) 50 Cal.,

197, Brindaban v. Sn Godamaji [1937] AIL, 555; Narayan Chandra
Dutta v. Bhuban Mohini Basu (1933 ) 38 C.W.N., 15; Gurupada
V. Manmohun A.LR. 1936 Cal., 215.

(c) 4 Hals., 2nd edn., pp. 175, 221; Bhupati Nath v. Ram Lai
(1910) 37 Cal., 128, 159 F.B.; Santona Roy v. The Advocate-General
of Bengal (1920) 25 C.W.N., 343; Doraisami v. Sandanathammal 1915
M.W.N., 478; Muthuknshna v. Ramachandra (1918) 37 M.L.J., 489.

id) The Mayor of Lyons v. The Advocate-General of Bengal (1876)

3 T.A., 32, 1 Cal., 303. In the matter of Hormasji Framji (1908) 32
Bom., 214; Malchus v. Broughton (1885) 11 Cal., 591; on appeal
(1886) 13 Cal., 193, 196; (1912) 36 Bom., 29; Prayagdas v. Tirumala
Sri Ranga Chary alu (1905) 28 Mad., 319.

62

946

ftELlGIOUS AND CMARltAbLE ENbOWMENTS. [cHAP. XXll,

Jurisdiction
of Courts.

§ 813. The Couits have jurisdiction to lemove manageis
of public religious or charitable endowments, and, to make
them accountable for breaches of trust. There is however no
hard and fast rule that every manager of shrine who has
arrogated to himself the position of owner should be removed
from his trust; each case must be decided with leference to
its circumstances (e). If the Court finds that a trustee in the
exercise of his duties has placed himself in a position in
which It thinks that the obligations of his office can no longei
be faithfully discharged, that is sufficient ground for his
removal (/) . Where a trustee asserted his own ownership of
temple properties and supported his claim by concocted ac-
counts, the Privy Council held that it was not open on any
sound principles of administration or of law to continue such
a person as a trustee (g). Where the properties in question
belong to a math the head of the math is answerable for mal-
administration as a trustee in a general sense, though he may
not be an express trustee in the English sense (h ) .

A suit for the removal of a trustee or for the appointment
of a new trustee or for settling a scheme or for other reliefs
mentioned in section 92 of the Civil Procedure Code, 1908,
IS governed by that piovision. That section, however, does
not apply to suits for reliefs outside its scope (i). A suit
under sec. 92 has to be brought by the Advocate-General or
with his consent by two or moie peisons having an interest

(c) Damodar Bhatji v. Bhat Bhogilal (1898) 22 Bom., 493,
Chintaman v. Dhondo (1891) 15 Bom., 612, Ram Parkash Das v.
Anand Das (1916) 43 I A , 73, 43 Cal, 707.

(D'^Peary Mohun Mukerji v. Manohur Mukerjee (1915) 43 Cal.,
1019, 1025, Vaidyanatha v. bwaminatha (1924) 51 I.A., 282, 47 Mad.,
884.

{g) Srinivasachariar v. Evalappa Miidaliar (1922) 49 I A, 237,
45 Mad., 565, Annaji v. Narayan (1897) 21 Bom., 556, Damodar v.
Bhat Bhogilal (1898) 22 Bom., 493, Sivasankara v. Vadagiri (1890) 13
Mad., 6, Prayagdas v. Srirangacharyalu (1906) 34 I.A., 178, 30 Mad.,
138, Kashinath v. Gangubai A.I.R. 1931 Bom., 170 (previous conduct,
not proved, is no test) , Manohar Ganesh v. Lakhmiram (1888) 12 Bom.,
247; Thackersey v. Hurbhum (1884) 8 Bom., 432; Sharat Chandra v.
Dwarkanath A.I.R. 1931 Cal., 558 (idol can sue by next friend in cast
of private religious trust). Prayag Doss v. Tirumala (1905) 28 Mad.,
319, on appeal 34 I A., 178, 30 Mad., 138.

(h) Nelliappa Achari v. Punnaivanam Achari (1927) 50 Mad., 567.

(i) Abdur Rahim v. Mahomed Barkat Ah (1927) 55 I. A., 96, 55

Cal., 519, 529; Budree Das v. Chooni Lai (1906) 33 Cal., 789, 805;
Appanna Poricha v. Narasinga Poricha (1922) 45 Mad., 113 F.B.;
Strinivasa v. Stnmvasa (1893) 16 Mad., 31, V enkataramana v.

Kasturi Ranga (1917) 40 Mad, 212 F.B.; Ghelabai v. Uderam (1912)
36 Bom., 29; Inayat Husain v. Faiz Muhammad (1923) 45 All, 335,
Ganga Charan v. Ram Chandra (1928) 50 All, 165; see Vythilirfga v.
Temple Committee Tmnevelly (1931) 54 Mad, lOll.

^A!US. 813-8U.J jUttlSMCTlON Ot CdUIlTg*

047

in the trust; outside the Presidency-Towns, the suit may also
be brought by the Collector or with his consent (;).

Section 92 vests a very wide discretion in the Court. In
giving effect to the provisions of the section and in appoint-
ing new trustees and settling a scheme, the Court is entitled
to take into consideration not merely the wishes of the
founder, so far as they can be Ascertained, but also the past
history of the institution and the way in which the manage-
ment has previously been carried on in conjunction with
other existing conditions that may have grown up
since its foundation. It has also the power of giving
any directions and laying down any rules which might
facilitate the work of management, and, if necessary the
appointment of trustees in the future (A).

Section 92 however docs not apply to maths (/). Nor of
course does it apply to private trusts or affect the individual
rights of private persons who could bring suits to enforce
such individual rights by an ordinary suit (m). Persons
interested in a temple can sue under Or. I, r. 8 C. P. C. to
set aside an alienation by the manager or committee as being
one without necessity and as detrimental to the interests
of the institution (/i) .

§ 814. Legislation has provided for safeguarding the Legislation,
maintenance of religious endowments and for their supei-
intendence and has conferred rights on pci sons inteiestcd to
move courts or special authorities in respect of breaches of

(y) Persons worshipping regularly are interested in the trust,
Sojedur Raja Chowdhun v. Gour Mohan (1897) 24 Cal., 418, Jugal-
kishore v. Lakshmandab (1889) 23 Bom., 639; Vaidyanatha v

Swaminatha (1924) 51 I.A., 282, 288 disappioving Jan Ah v. Ram
Nath (1881) 8 Cal., 32. Bare possibihty of resort is insufficient,
Ramachandra v. Paramebwaran (1919) 42 Mad., 360 F.B. Being
descendants of the founder is sufficient, (1924) 54 I. A., 282 affg. (1920)
41 M.L.J., 20.

(k) Mahomed Ismail Ariff v. Ahmed Moollah Dawood (1916) 43
I.A., 127, 43 Cal., 1085, 1101, 1102, Muthiah Chetti v. Periannan Chetti
(1916) 4 M.L.W., 228, Venkatarama Chetti v. Damodaram Chetti
(1926) 51 M.LJ., 457; Doraivelu v. Adikesavalu (1922) M.W.N., 620.

(/) Nataraja v. Kailasami (1921) 48 I.A., 1, Kailasami v. Nataraja
(1909) 33 Mad. 265 F.B.

(m) Bimal Kishore Chose v. Jnanendra [1937] 2 Cal., 105.

(n) V enkataramana v. Kasturiranga (1917) 40 Mad., 212 F.B.;
Subramania v. Nagarathna (1910) 20 M.L.J., 151. Compare Chidam-
baranatha v. Nallasiva (1918) 41 Mad., 124; V eeramachaneni Rama-
swamy v. Soma Pitchayya (1920) 43 Mad., 410; Rangaswami v.
Knshnaswami (1923) 44 M.L.J., 116. As to where there is no trustee,
see Vadlamudi Sastrulu v. V enkataseshayya A.I.R. 1928 Mad., 614. The
decision in Kalimata Debi v. Nagendra A.l.R. 1927 Cal., 244 is
erroneous. The dictum m Kunj Behari v. Shyam Chand A.I.R. 1938
Pat., *394 that the remedy is by removal of the trustee is incorrect.
The relief asked should have been for possession to the trustee.

948

REUGlOUS AND CHARITABLE ENDOWMENTS. [cHAR. XXIl,

trust and mismanagement of such institutions. Such enact-
ments are the Religious Endowments Act (XX of 1863), the
Charitable and Religious Trusts Act (XIV of 1920), the
Madras Hindu Religious Endowments Act (II of 1927), the
Bombay Act (II of 1863). A discussion of their provisions
is outside the scope of this work.

The Madras Hindu Religious Endowments Act, 1927, has
repealed the Religious Endowments Act, 1863, and the Madras
Endowments and Escheats Regulation, 1817, so far as religi-
ous endowments are concerned and has constituted a Board
of Hindu Religious Endowments in the Province. By virtue
of sec. 73 (3) of that Act, section 92 of the Civil Procedure
Code has ceased to have any application to any suit claiming
any relief in respect of the administration or management of
a religious institution. It fuither provides that no suit in
lespect of such administration or management shall be insti-
tuted except as provided therein. The Madras Act is virtually
a complete code m itself. It does not apply to the city of
Madras (o).

The Charitable and Religious Trusts Act, 1920, enables any
peison having an interest in any public religious or charitable
trust to apply to the appropriate court for directions for the
examination and auditing of the accounts of the trust for a
period of three years and for directions to the trustee to
furnish him with particulars i elating to the liust.

(o) The Religious Endowments Act XX of 1863 also does not
apply to the Presidency towns, Annasami Pillai v. Ramaknshna (1901)
24 Mad., 219, 231; Panchcowrie Mull v Chumroolall (1878) 3 Cal.,
563.

CHAPTER XXIII
BENAMI TRANSACTIONS.

§ 815. The law of benami is in no sense a branch of
Hindu law.

The practice of acquiring and holding property or of
carrying on business in names other than those of the real
owners, usually called the benami system, is a common
practice. There is nothing inherently wrong in it and it
accords, within its legitimate scope, with the ideas and habits
of the people (a) . In Bilas Kunwar v. Desraj Ranjit Singhs
Sir George Farwell, delivering the judgment of the Judicial
Committee, observed with reference to a benami dealing: “It
is quite unobjectionable and has a curious resemblance to
the doctrine of our English law, that the trust of the legal
estate results to the man who pays the purchase money, and
this again follows the analogy of our common law, that where
a feoffment is made without consideration the use results to
the feoffor” (6). Transactions to defeat creditors or third
parties are not peculiar to India (c).

A benami transaction is a perfectly genuine transaction
which is legally enforceable id). So long therefore as a
benami tiansaction does not contravene the provisions of law
the courts are bound to give it effect (e).

§ 816. A benami transaction is one where one buys pro-
perty in the name of another, or gratuitously transfers his
property to another, without indicating an intention to benefit
the other (/). The benamidai therefore has no beneficial
interest in the property or business that stands ift his name;

(а) Gur Narayan v, Sheolal Singh (1919) 46 LA., 1, 9, 46 Cal.,
566, 574.

(б) Bilas Kunwar v. Desraj (1915) 42 I. A., 202, 205, 37 All., 557,
565.

(c) Venkatakrishnayya v. V enkataratnam A.I.R. 1935 Mad., 947,
950.

(d) Mawng Tun Pe v. Haidar (1936) 14 Rang., 242, 251, F.B.;
*‘Care should be taken not to regard the term benami as being equiva-
lent to not genuine”, per Page, C.J,

(e) Gur Narayan v. Sheolal Singh (1919) 46 I.A., 1, 46 Cal., 566;
Afiran Bibi v. Narimtulla A.I.R. 1928 Cal., 666, 48 (II.L.J., 135.

(/) See Rangappa v. Rangaswami A.I.R. 1925 Mad., 1005, (1925)
M.W^. 232 where the distinction between a sham and a benami Iran*
saction IS explained; Gnanabai v. Srinivasa (1868) 4 M.H.C., 84.

Benami
system, a
common
practice.

And valid.

Principles
of benami.

950

BENAMI TRANSACTIONS.

[chap. XXIII,

he represents in fact the real owner and so far as their
relative legal position is concerned, he is a mere trustee for
him (g) . In other words, a benami purchase or conveyance
leads to a resulting trust in India, just as a purchase or
transfer under similar circumstances leads to a resulting trust
in England. The general rule and principle of the Indian
law as to resulting tiusts differs but little, if at all, fiom the
general rule of English law upon the same subject (h) ,

The English rule is: where a person purchases property in
the name of another or in the name of himself and another
jointly, or gratuitously transfers property to another or to
himself and another jointly, then, unless there is some further
intimation or indication of an intention at the time to benefit
the other person, the propeity is as a rule deemed in equity
to be held on a resulting trust foi the purchaser or trans-
feror (/) .

Presumption
of advance
ment in
English law.

§ 817. In England an exception is made to this rule
where the person in whose name the conveyance is taken or
made, is a child of the real owner, when the transaction is
piesumed to ha\e been made by wav of advancement or gift
to the child. But this presumption is lebuttable (/) . So
too, a similar presumption is made in England where a
husband puirhases or transfers property m the name of his
wife (/c) .

Not m
Indian law.

But this presumption of advancement or gift in
favour of the child or wife has not been extended to Hindus
and Mahommadans in India. The ground of distinction is
stated^to he the widespread practice in India to make grants
and transfers benami for no obvious leason or apparent
puipose without the slightest intention of vesting m the donee

f^) Gur Naravan v Sheolal Singh (1919) 46 T A , 1, 9, 46 Cal.,
566, 574, Bindu Bashini Devi v Kashinath (1931) 58 Cal , 1371. See
Pitchayya v Rattamma A.I R 1929 Mad , 268, 55 M.L.J , 856 where
It was pointed out that he was not a strict tiustee, hut he is not a
mere alias.

{h) Kerwick v. Kerwick (1921) 47 I. A , 275, 278, 48 Cal., 260 263.

(i) 28 Hals. 1st ed , p 54, para 103, Scottish Equitable Lije Assur-
ance Society, In re, [1902] 1 Ch 282.

(;) 28 Hals. p. 55, para 105; Kerivick v. Kenvick (1921) 47 I.A.,
275, 279, 48 Cal.. 260.

{k) 28 Hals. p. 59, para 107; (1921) 47 I.A., 275, 48 Cal, 260
supra, •

PARAS. 817-818.] BENAMI TRANSACTIONS.

951

any beneficial interest therein (/). In Gurun Ditta v. Ram
Ditta it was held that a deposit by a Hindu of his own moneys
in bank in the joint names of himself and his wife, payable
to ‘either or survivor’ does not on his death constitute a gift
by him to his wife, but there is a resulting trust in his favour
in the absence of proof of a contrary intention (m).

Though there may be no presumption of advancement in
Indian law, ‘very little evidence of intention is sufficient to
turn the scale’ (/i).

§ 818. The rule is well established, that in all cases of Purchase
asserted benami the best, though not the only, criterion is to
ascertain from whose funds the purchase-money proceeded.

Whether the nominal owner be a child, wife or a stranger,
a purchase made with the money of another is prima facie
assumed to be for the benefit of that other (o). Of
course there may be cases where, although A purchases
property with his own funds and puts it in the name of B,
it is proved by evidence that it was intended to be a gift to
B; such a transaction is not really benami at all (p). This

(/) (1921) 47 I.A., 275, 278, 48 Cal., 260 supra; Dhurm Das v.
Sham Soonderi (1843) 3 229; Gopeeknst v. Gunga Prasad

(1854) 6 M.I.A., 53; Maulvi Sayyed v. Mt, Bebee (1869) 13 M.I.A.,
232.

(m) (1928) 55 I.A., 235, 55 Cal., 944; See also Paul v. Nathaniel
(1931) 53 AIL, 633; Latifunnisa v. Nazmuddin Shah A.I.R. 1935
AIL, 856, 1935 All. L.R., 602. As il is not at all usual in a benami
transaction to put property in the name of ‘either or survivor*, there
would seem to be no good reason why the reference to ‘survivor*
should not be sufficient evidence of a contrary intention. In the
Nattukottai Chetty community the fact that the cntiy in the bank’s
books is in the name of the husband does not show that the property
IS not the wife’s stridhana* Muthuraman v Periannan A.I.R. 1934
Mad., 621.

in) Per Sir Geoige Lowndes in Mohd Sadig v! Fakir Jahan
(1931) 59 I.A., 1, 16, 6 Luck., 556; Umah Per shad v. Gandharp Singh ^
(1887) 14 I.A., 127, 15 Cal., 20; Kailash v. Jagarnatha A.I.R. 1935 AIL,
886, 1935 A.L.J., 998 (evidence may be indirect).

(o) Dhurm Das Pandey v. Shama Soondri Dtbiah (1843) 3 M.I.A.,
229; Pandit Ram Narain v. Maulvi Muhammad (1899) 26 LA., 38,
26 Cal., 227, Gopeeknst v. Gunjapersaud (1854) 6 M.I.A., 53;
Moulvie Sayyud v. Mt Bebee (1869) 13 M.I.A., 232, 13 W.R. (P.C.),
1; Bissessur v. Lurhmessur (1880) 6 LA., 233, 5 C.L.R., 477; Nagin^
bhai Abdulla (1882) 6 Bom., 717; Ashabaiy,Ha]i Tveb (1885) 9 Bom.,
115; Kerwick v. Kerwick (1921) 47 LA, 275, 48 Cal., 260; Dharani
Kant V. Knsto Kumari (1886) 13 LA., 70, 13 Cal., 181.

ip) Ram Narain v. Md. Hah (1899) 26 LA., 38, 26 Cal., 227;
Ismail Mussajee v. Hafiz (1906 ) 33 LA., 86, 33 CaL, 773; Md. Sadiq
V. Fakir Jahan (1931) 59 LA., 1, 6 Luck., 556; Manmohan Das v.
Mt. Ramdei A.I.R. 1931 P.C., 175, (1931) A.L.J., 550, Thulasi Ammal
V. Official Receiver, Coimbatore, A.I.R. 1934 Mad., 671, 67 M.L.J., 541;
Mt ijatifunnisa v. Najnuiddin A.I R 1935 AIL, 8^, 156 I.C., 609; Mt.
Thakro v. Ganga Pershad (1888) 15 LA., 29, 10 AIL, 197.

952

BENAMI TRANSACTIONS.

[chap, xxin,

No prc'
sumption of
benami.

Source of
money not
conclusive.

Onus of
proof.

18 clear from Section 82 of the Indian Trusts Act and the
observations of the Judicial Committee in Bilas Kunwar v.
Desraj Ranjit Singh (q).

§ 819. There is no presumption that what stands in the
name of the wife belongs to the husband. Nor is there any
presumption that, when property stands in the name of a
female member of a Hindw family, it is the common
property of the family (r). The correct rule is that if it is
proved that the purchase money came from another source
it is assumed until the contrary is shown that the person who
supplied the puichase money is the owner of the property.
All that Soora Lakshrniah Chetty v Kothandaiam Chetty
decided was that where a husband actually purchased property
in the name of his wife, such a transaction standing alone
and unexplained by other proved and admitted facts is to be
regarded as a benami transaction (s) . While the source from
which the money came is undoubtedly a valuable test, it
cannot be considered to be the sole or conclusive criterion.
For, the question whether a particular transaction is benami
or not, is one of intention and there may be other circum-
stances to negative the prima facie inference from the fact
that the purchase money was supplied by or belonged to
another (t) . The position of the parties, their relation to one
another, the motives which could govern their action and
their subsequent conduct may well rebut the presumption fn).

§ 820. Of couise the onus is on the person who alleges
a transaction to be benami, to make it out. The assertion
that a transaction is not really what it professes to be will

( 9 ) ^(1915) 42 I A., 202, 37 All., 557; Chittaluri Sitamma v. Saphar
Sitapatirao (1937) 2 M.L.J , 606.

(/■) Narayan v. Krishna (1885) 8 Mad , 214, Official Assignee of
Madras v Natela Gramam A I R 1927 Mad , 194, 98 I.C , 660 explain-
ing (1925) 52 I A, 286, 48 Mad, 605, Jnanendra v. The Official
Assignee of Calcutta (1927) 54 Cal, 251, 261, per Rankin, J., Shan-
muga Mudahar v Kaveri Ammal A T.R 1928 Mad., 708, Syed Mahomed
V Shasi Mouh (1938) 67 C L.J., 188.

(1925) 52 I A., 286, 48 Mad, 605 See this case explained in
Sri Shib Kumari v Sri Siibudhi A.I.R, 1932 Cal., 829, Hiralal v Mt
Jumna A. I R. 1934 All , 867

(0 Md Sadiq V. Fakir Jahan (1931) 59 I A., 1, 6 Luck., 556-
/small Musajee v Hafiz (1906) 33 LA., 86, 33 Cal 773 784 785-
Azimet V. Hurdwaree (1869) 13 M.I.A., 395; Thulasi Ammal v. Official
Receiver, Coimbatore, A.T.R 1934 Mad., 671, Devi Dayal v. Mt Indo-

Nawab Begum v. Husain Ah (1937) 18

V. (1906) 33 I.A., 86, 33 Cal., 773:

Man Mohandas v. Mt, Ramdei A.I.R. 1931 P.C., 175: Promode Kumar

(1908) 35 I.A., 104, 30 All., 258 (where a mortgage was alleged to be
a benami transaction). ^

PARAS. 820 « 821 .] BENAMI TRANSACTIONS.

be regarded by the Courts with great suspicion and must be
strictly made out by evidence (v). Where the motive alleged
for a benami transaction itself suggests that the purpose in
view would be served only by a genuine transfer and not by
a benami transaction, the more reasonable inference ‘is that
the transfer was intended to be operative as a transfer of
the beneficial interest and net as a mere benami trans-
action (w;).

§ 821. Where a transaction is once made out to be Effect given
benami, the Courts in India, which are bound to decide
according to equity and good conscience, will deal with it
in the same manner as it would be treated by an English
Court of Equity (:r). The principle is that effect will be
given to the real and not to the nominal title, unless the
result of doing so would be to violate the provisions of a
statute, or to work a fraud upon innocent persons (y). For
instance, the real may sue the ostensible owner to establish
his title, oi to recover possession (z) ; and, conversely, if
the benamidar attempts to enforce his apparent title against
the beneficial owner, the latter may establish the real nature
of the transaction by way of defence (a) . Similarly, creditors,
who are enforcing their claims against the property of the
real owner, will have exactly the same rights against his
property held benami as if it were in his real name (6) ; and
conversely, if they seize his estate in execution of a decree

(r) Maung Po Km v. Maung Po Shein (1926) 4 Rang., 518 P.C.;
Mohammad Hajee v. Vednath Singh A.I.R. 1938 Rang., 28;
Bengal Coal Co. v. Sita Ram A.l.R. 1935 Cal., 666; Chutalun Sitamma
V. Saphar Sitapatirao (1937) 2 M.L.J., 606; Sreemanchunder v.
Gopaulchunder (1866) 11 M.I.A., 28, Azimut v. Hurdwaree (1870)
13 M.I.A., 395; Faez Buksh v. Fakeeroodeen (1871) M.I.A., 234;

Uma Pershad v. Gandharp Singh (1888) 14 I.A., 127, 15 Cal., 20j,
Suleman Kadar v. Nawab Mehdi (1898) 25 I.A., 15, 25 Cal., 473;
Nirmal Chunder v. Mahomed Siddick (1899) 25 I.A., 225, 26 Cal., 11;
Ranga Aiyar v. Srinivasa Aiyangar (1898) 21 Mad., 56. Oral evidence
IS sufficient, Palaniyappa v. Arumugam (1864) 2 M.H.C., 26; Tara^
monee v. Shibinath 6 W.R., 191; Kumara v. Srinivasa (1888) 11 Mad.,
213.

(w) (1937) 2 M.L.J., 606 supra.

(x) Ex parte Kahundas (1881) 5 Bom., 154.

iy) Gur Narayan v. Sheolal Singh (1919) 46 I.A., 1, 46 Cal., 566;
In re Gobordhan v. Sm. Rai Kessori (1916) 20 C.W.N., 554, 560
where all the cases are reviewed.

(z) Thukrain v. Government (1871) 14 M.I.A., 112.

(а) Ramanugra v. Mahasundur (1873) 12 B.L.R., 433 (P.C.).

(б) Musadee v. Meerza (1854) 6 M.I.A., 27; Hemanginee v.
Jogendro 12 W.R., 236; Gopi v. Markande (1879) 3 Bom., 30; Abdool
Uye v. Mir Mahomed (1883) 11 LA., 10, 10 Cal., 616.

954

Unless statute
violated

BENAMI TRANSACTIONS. [CHAP. XXIII,

against the benamidar, the real owner will be entitled to set
aside the execution (c).

§ 822. On the other hand, there are various statutes which
provide that in sales under a decree of Court, or for arrears of
revenue, the certified purchaser shall be conclusively deemed
to be the real purchaser, and shall not be liable to be ousted
on the ground that his purchase was really made on behalf
of another (d). Such Acts, of course, bar the equitable
jurisdiction of the Courts, but they will be strictly construed.
Therefore, if the leal owner is actually and honestly in
possession, and the benamidar attempts to oust him by virtue
of his nominal title, the statute will not prevent the Courts
from recognizing the unreal character of his claim (e).
Agreements made after the sale, though carrying out those
made before the sale, are not affected, for instance, by section
66 of the Civil Procedure Code and the real owner can sue
the benamidar to recover the property (/). And a purchase
made by the manager of a Hindu family with the joint funds
in his own name, as is usual, would not be considered as
coming within the meaning of such statutes (g) . It has also
been held that these provisions are only intended to prevent
the real owner from disputing the title of the certified pur-
chaser, and that they do not preclude a third party from
enforcing a claim against the true owner in respect of the
property purchased as benami {h) .

(c) Tara Soonduree v Oojiil 14 W R., Ill,

id) Civil Procedure Code, V of 1908, Sec. 66 (Act XIV of 1882,
Sec. 317) , Bengal Land Revenue Sales Act XI of 1859, Sec 36 Sec-
tion 82 W the Indian Trusts Act (II of 1882) expressly provides that
Its provisions shall not affect these two enactments Sec. 38
of the Madras Revenue Recovery Act, 1864, stands altogether on a differ-
ent footing and benami purchases are not prohibited, N arayanasami v.
Govindasami (1906) 29 Mad, 473 F.B. approving Muthuvaiyan v. Sinna
Samuvaiyan (1905) 28 Mad, 526, V enkatachalam v. Purushotama
(1909) 19 M.LJ, 270

(e) Buhum v. Lalla Buhooree (1872) 14 M I.A., 496, Lokhee v.
Kalypuddo (1875) 2 I. A . 154, Abdul Jalil Khan v Obaidullah Khan
(1929) 56 I A , 330, 51 All, 675, Govinda Kuar v Lala Kishun Prasad
(1901) 28 Cdl , 370, but see Uniashashi Debt v Akrur Chandra (1926)
53 Cal, 297, Keshri Mull v Sukan Ram (1933) 12 Pat., 616.

(/) Ramathai Vadivelu v Pena Manicka (1920) 47 I.A , 108, 43
Mad., 643 approving Venkatappa v Jalayya (1919) 42 Mad., 615.

( 5 :) See Tundun v. Pokh Narain 13 W R., 347, Bodh Singh v.
Ganesh 19 W.R., 356, 12 B.L R , 317 PC., Ganga Sahai v. Kesri
(1916) 37 All , 545 P.C

ih) Kanhizah v Manohur (1886) 12 Cal, 204, Chundra Kaminy
V Ram Ruttnn (1886) 12 Cal, 302; Suba Bibi v. Hara Lai (1894)
21 Cal, 519, Tirumalayappa v. Stvami Naikar (1895) 18 Mad., 469.
This 19 given effect to in Sec. 66 (2) of the Code of the Civil Prctlce-
dure (V of 1908).

PARAS. 822 - 823 .] BENAMI TRANSACTIONS.

955

So also where the benami title has been created in order
to conceal the fact that the real owner had effected a purchase
which was absolutely illegal, either as being forbidden by
statute or contrary to public policy, a suit by the real owner
or his representatives to recover the property from the Kenami-
dar will fail, on the ground that he has no title, and section 82
of the Indian Trust Act of 1882 will not prevent this defence
being set up. Of course the benamidar himself will have no
better title, except from the fact that he is in possession.
Such a possessory title will be good against all the world
except against the true owner (i).

Where a police officer purchases property in the name of
another, effect cannot be given to his real title as this would
defeat the provision of the particular Police Act or section 23
of the Indian Contract Act (;).

§ 823. Even independently of statutory provisions, the
Courts will not enforce the rights of a real owner where
they would operate to defraud innocent persons. One
familiar instance occuis, where the benamidar has sold,
mortgaged or otherwise alienated for value the pro-
perty of which he is the ostensible owner, to persons
who had no knowledge that he was npt the real owner. In
such a case the Judicial Committee said: “It is a principle of
natural equity, which must be of universal application, that
where one man allows another to hold himself out as the
owner of an estate, and a third person purchases it for value
from the apparent owner in the belief that he is the real
owner, the man who so allows the other to hold himself out
shall not be permitted to recover upon his secret title, unless
he can overthrow that of the purchaser, by showing either
that he had direct notice, oi something whicli amounts to
constructive notice of the real title, or that there were circum*
stances which ought to have put him upon an enquiry that, if

(l) Pahlwan v. Ram Bharose (1905) 27 AIL, 169, Siindar v.
Parbati (1890) 16 LA., 186, 12 AIL, 51.

(;) Sundrabai v. Manohar A.I.R. 1933 Bom., 262, 35 Bom. L.R.,
404; see also In the goods of Tarunkumar Ghose (1935) 62 Cal., 114.
The taking of an assignment of a mortgage by a patwari is not a trans-
action opposed to public policy, Bhagwan Dei v. Murarilal (1917)
39 AIL, 51 F.B. overruling Sheo Narain v. Mata Prasad (1905) 27
AIL, 73, but see Abdul Rahman v. Ghulam Muhammad (1926 ) 7 Lab.,
463? See also Kamaladevi v. Gur Dayal (1917) 39 AIL, 58 F.B.;
Dharwar Bank Ltd. v. Mahomed Hayat A.L^ 1931 Bom., 269.

Or opposed to
public policy.

Fraud on
third parties.

?56

BENAMI TRANSACTIONS.

[chap. XXIII,

prosecuted, would have led to a discovery of it” (A;).
This principle is contained in section 41 of the Transfer
of Property Act, 1882. But, of course, notice of the
trust may be implied as well as express, and if a man
deals with another who is not in possession (/), or who is
unable to pioduce the proper documents of title, these
facts may amount to notice which will make his transac-
tion subject to the real state of the title of the person with
whom he deals (m). In such cases there is no deliberate
intention on the pait of the real owner to commit a fraud upon
anyone. But if he deliberately places all the means of com-
mitting a fraud m the hands of his benamidar, equity will not
allow him to assert his title to the detriment of a person
who has actually been defrauded. Where, however, the fact
that an ostensible owner is only a benamidar is known to the
person who deals with him, and the transaction into which
he enteis is known and acquiesced in by the real owner, it
becomes valid against him. as if he had been a party to it (n) .

Fraud upon ^ ^ stionger case is that in which property has

creditors. been placed in a false name, for the express purpose of
defrauding creditois. As against the lattei, of course, the
transaction is wholly invalid. Wheie the fraudulent purpose
has been in fact earned out either entnely or as to a substan-
tial pait, the real owner is not entitled to recover the property
from the benamidar. Where however the purpose of the
fiaudulent conveyance is defeated, the alienoi or his representa-
tive is entitled to recover the pioperty and the benamidar who
colluded with him cannot rely upon the contemplated fraud
as an answer to the action. In Petherpermal Chetty v.
Mumandi Servai, the Judicial Committee obseived, ‘To enable

(k) Ramcoomar v. McQueen (1873) I. A Supp. Vol. 40, 11 B.L.R.,
46, 52, Mir Mahomed v Kishori Mohun (1895) 22 I.A., 129, 22 Cal.,
909, Luchmun Chunder v. Kallichurn 19 W.R , 292 P.C. See, too,
per Phear, J., in Bhugwan v. U pooch 10 W.R , 185. Chunder Coomar
V. Hurhuns Sahai (1890) 16 Cal, 137; Sundar Lai v Fakirchand
(1902) 25 All, 62; cf, Sarat Chandra v. Gopal Chunder y ibid., 148,
where it was held that the mere fact of a benami transfer did not
amount to a representation which bound the real owner or his heirs
as against a purchaser from the benamidar.

(/) Vyankapacharya v. Yamanasanii (1911) 35 Bom., 269. See
as to ‘notice’, sec. 3 of the Transfer of Property Act.

(m) Hakeem v. Beejoy 22 W.R, 8, Mancharji v. Kongseoo (1869)
6 Bom. H.C. (OC.J), 59; Imambandi v. Kumleswari (1887) 13 I. A.,
160, 165, 14 Cal., 109. But see Annada Per shad v. Prasannamoyi
(1907) 34 LA, 138, 34 Cal., 711 and Bindubashinee v. Kashinath
(1931) 58 Cal., 1371 where it was held that estoppel alone could
prevent the true owner from disputing the acts of his benamidar.

in) Sarju Prashad v. Bir Bhaddar (1893) 20 I.A., 108, 15 AIL, 304.

t^AHAS. 824 - 825 .] fifiNAMf tllANSACTtONS.

a fraudulent confederate to retain property transferred to him,
in order to effect a fraud, the contenjtplated fraud must,
according to the authorities, be effected. Then, and then
alone, does the fraudulent grantor, or giver, lose the right to
claim the aid of the law to recover the property he has parted
with*’ (o). A Full Bench of the Madras High Court has
recently held, overruling its .earlier decisions which took a
contrary view, that a mere fraudulent intention evidenced by
the transaction is not sufficient to prevent a person who has
been a party to the fraudulent transaction from setting up his
own fraud. The intended fraud must have been effected either
entirely or to a substantial extent (p). All the other High
Courts have taken the same view (q).

Neither a gift in contemplation of insolvency nor a transfer
by way of fraudulent preference is a benaini transaction, as
the transfer is really intended to take effect, and is not
colourable (r). Whethei the transfei is valid oi not depends
upon other considerations.

§ 825. On the question whethei a benainidai who has no
beneficial interest in the property which stands in his name
could maintain an action in respect thereof, there was former-
ly considerable diversity of opinion (s ) . But it is now well

(o) (1908J J5 I.A., 98, 103, 35 Cal., 551, 559; bee Taylor v.
Boivers (1876) 1 Q.B.D. 291, 300, v. Hughe:> (1870) 9 Eq.,

475, 479. The observations of Fry, L.J., in Kearley v. Thomson (1890)
24 Q.B.D., 742 were not followed by Lord Atkinson in this case. Sec
also V enkatararnayya v, Pullayya (1936) 59 Mad., 998, 1018-9 F.B.

ip) (1936) 59 Mad., 998 F.B. supra, folloving Muthuraman Chetty

V. Krishna Pillai (1906 ) 29 Mad., 72 and overruling Kamayya v.
Mamayya (1916) 32 M.L.J., 484, Subbaraya v. Subbaraya (1926) 24
L.W., 500, Ramaswami Alamelu (1923) 46 M.LJ., 298; Suryanara
yana v. Butchaiah (1915) 3 M.L.W., 111 and Kota^ya v. Mahalaksh-
mamma (1933) 56 Mad., 646. See also V enkatakrishnayya v.

V enkataratnam A.I.R. 1935 Mad., 947.

iq) Honapa v. Narsapa (1899) 23 Bom., 406; Girdharlal v.
Manikamma (1914) 33 Bom., 10; Bai Devmani v. Ravishankar (1929)
53 Bom., 321; Shamlall Mitra v. Amarendra Nath (1893) 23 CaL, 460;
Goberdhan v. Rita Roy (1896) 23 Cal., 962; Jadu Nath v. Rup Lai
(1906) 33 Cal., 967; Akhil Prodhan v. Manmatha Nath (1913) 18
C.W.N., 1331, 1334; Surya Mull v. Dwaraka Prasad A.I.R. 1929 Pat.,
127, 10 P.L.T., 138; Vilayat Husain v. Misran (1923) 45 All., 396
F.B.; Qudir Baksh v. Hakam (1932) 13 Lah., 713 F.B.; Walaiti Ram
V. Shadi Ram (1935) 16 Lah., 27; Ma Nan v. Ma E (1926) 4 Rang.,
429.

(r) Gnanabhai v. Srinivasa (1868) 4 M.H.C., 84.

(5) For older decisions against benamidar’s right to sue which are
no longer law, see: Hari Gobind v. Akhoy Kumar (1889) 16 Cal., 364;
Issur Chandra v. Gopal Chandra (1898) 25 Cal., 98; Baroda Sunden v.
Binabundhu, ibid., 874; Mohendra Nath v. Kali Proshad (1903) 30 Cal.,
265; Atrabannessa v. SafatiUlah (1916) 43 Cal., 504; Kathapermal v.

Right of
benamidar
to sue.

m

fiENAMt TkANSACTIONS.

[cilAE. XX!lt.

Effect of
decree.

settled that a benamidar fully represents the real owner and
can, as against third parties, maintain an action in his own
name whether it is to recover possession of land oi other
property or one to enforce a contract. The beneficial owner
need not be a party to it (t).

It has been held by a Full Bench of the Madras High Court
that the person beneficially entitled undei a negotiable instru-
ment can sue the promisor and the benamidar for a declai-
ation that the payee undeV the negotiable instrument is only
a trustee or benamidar for him, though he could not
diicctly sue the promisor on the note (w)

Accordingly in a proceeding b> or against the benamidai,
the person beneficially entitled is fully affected by the rules
of res judicata. It is open to the latter to apply to be joined
in the action; but whether he is made a party or not, a
proceeding by oi against his lepresentative is fully binding
on him (v).

Secretary of State (1907) 30 Mad., 245, contra^ Nand Kishore v. Ahmad
Ata (1896) 18 All, 69, Yad Ram v Umrao Singh (1899) 21 All, 380;
Bachchaw Gajadhar (1906) 28 AIL, 44, Kamta Prasad v. Mdoman (1915)
37 All, 414, Ravjv v. Mahadev (1898 ) 22 Bom., 672, Dagdu v. Balvant,
ibid y 820

(0 Gur Narayan v. Shea Lai Singh (1919) 46 I.A., 1, 46 Cal.,
566 (suit to recover property) , V aitheswara Aiyer v. Srinivasa (1919)
42 Mad , 348 F.B. (suit to enforce mortgage) , Narayan v. Kaji
Ghulam (1925) 49 Bom, 832 (suit on mortgage), Afiran Bibi v
Narirntulla AIR. 1928 Cal, 666 (suit to recover possession); Bhola
Pershad v Ram Lall (1897) 24 Cal, 34, Sachitananda Mohapatra v.
Baloram (1897) 24 Cal., 644, Yad Ram v Umrao Singh (1899) 21
All, 380> Ramanuja v. Sadagopa (1905) 28 Mad, 205, Subba Nara-
yana v Rarnastvami (1907) 30 Mad, 88 F B (suit on a negotiable
instrument), Banwari Mukund v Ajit Kumar (1938) 67 CLJ, 320.

(a) Venkatarama Reddi v. Valli Akkal (1935) 58 Mad, 693 F.B.,
Harkishore Barna v. Guru Mia (1930) 58 Cal., 752 (the holder of a
negotiable instrument alone can sue) , Ghanshyam Das v. Ragho Sahu
A I.R 1937 Pat , 100 F.B. (holder alone can institute a suit) , Jaswant
V. Gobind Ram (1933) 14 Lah., 19.

(r) Gur Narayan v. Sheo Lai Singh (1919) 46 I A., 1, 46 Cal,
566, Gopinath v. Bhugwat (1883) 10 Cal, 697, 705, Baroda Kanta v.
Chunder (1902) 29 Cal, 682, Afiran Bibi v. Narimtullah A.I.R

1928 Cal, 666, 667; Thakur Das v. Keshab Chandra (1938) 42
C.W.N., 497; Shangara v Krishnan (1892) 15 Mad, 267; Kaniz

V. Wall IJllah (1908) 30 All, 30, Ravji v. Mahadev (1898) 22 Bom,
672 It IS however open to a third party to come m and show that
a suit was really carried on for his benefit, Lachman v. Patniram
(1877) 1 All, 510. But where judgment is given in an apparently
hostile suit, neither of the parties can be heard to say that the fight
was dll a shdin, for instance, the defendant cannot say that he was
the plaintiff and that, so far from judgment having been ieco\ered
against him, he had leally recovered judgment, Bhowahiil v. Rajendro
(1870) 13 W.R., 157, Chenvirappa v. Puttappa (1887) 11 Bom., 708.

APPENDIX I.

Section A.

The Samskaras laid down in the Smiitis are: —

»

(1) The Garbhadana or the rite performed before the
conception (a).

(2) The Pumsavana or the ceremony performed, to
secure the birth of a son, in the third month of the pregnancy.

(3) The Simanfonnayana or the ceremony of parting
of the hair performed in the fourth, sixth, seventh or eighth
month of a woman’s first pregnancy.

(4) The Jatakarma oi the ceremony performed for a
male child before the navel string is cut. With the recitation
of the sacred formula, the child must be fed with honey and
butter after they had been touched with a piece of gold or
a gold ring (6).

(5) The Namakarana or the ceremony of naming the
child. The name must be indicative of the paternal or
maternal grandfather and the rest or the family deity or
it may be after the name of the month in which it is born or
after the gnru or the spiritual teacher. Baudhayana says:
“The names may be eithei after those of Rishis or of Devatas
or after one’s ancestors”. The names of girls should consist
of uneven syllables, as Sri, Bharati and etc. (c).

(6) The Nishkramana or taking the child out of the
house to see the moon in the third month oi the sun in the
fourth month or to bow to a Devata (d).

•

(7) The Annapi asana or the ceremony of the first
feeding of the child with cooked rice in the sixth or the cightli
month after the child’s birth or when the child has cut its
first teeth (e).

(а) Manu, II, 26, 27; Yajn., I, 11 - 12 , Vidyarnava’s trans., 19, 20;
Smritichandnka, Samskarakanda, Mys?ore ed., 32-72, 177-190.

( б ) Manu, II, 29; A-^valayana Grihyasutra, I, 15, 1; Paraskara, I,

16, 4, Gaut., VIII, 14-21; Vishnu, XXVII, 1-12, Yajn., I, 11-13;
Vidyarnava’s trans., 23 sqq; Dig., II, 301-302.

(c) Manu, II, 32-33; Asvalayana Grihyasutra, I, 15, 4-10; Paras-
kara, I, 17-1-4; Vidyarnava’s trans., p. 37.

(d) Manu, II, 34; Asvalayana Grihyasutra, I, 16, Paraskara, I,

17, 5; Vidyarnava’s trans., 39

4 ,( 6 *) Asvalayana Grihyasiilra, 1, 16, Paia^kara 1 , 19, 1 - 6 ; Mil.,
Vidyarnava’s trans., 40.

960

^AMSKARAS.

(8) The Chudakarana or the ceremony of tonsure in
the third or the fifth year or along with the Upanayanam (/).

(9 and 10) The Upanayanam and the Savitri are the
ceremonies of investiture with the sacred thread and the
initiation into the Gayatri. The student is brought near the
preceptor who instructs him in the Gayatri, the sacred Vedic
verse to make him fit to receive instruction in the Vedas (g).
The Upanayanam is performed in the eighth year after con-
ception for a Brahmin, in the eleventh for a Kshatriya and
in the twelfth for a Vaisya. The maximum age for the
performance of the Upanayanam rite for Brahmans,
Kshatriyas and Vaisyas respectively is up to the sixteenth
year, the twenty -second year and the twenty-fourth year
(Yajn., I, 37).

(11) The Sarnavartana or the ceremony on the comple-
tion of studentship (h) ,

(12) The Vivaha or the ceremony of marriage (i).
Complementary to the marriage ceremony is the ceremony
(mentioned only in the later literature) of Dwiragarnana or
gowna of Bengal and Bihar or the Ritusanthi of the South. It
is the second entrance of the bride from her father’s house
into her husband’s house to take hei abode with him (/).

Section B.

Order in Obsequies.

The ordei of pci sons competent to perform the funeral
rites (pretasraddha) of a deceased person accoidmg

(/) Manu, 11, i35; Asvalayaiia Griliyabulra, I, 17, I, Parabkara If,
1. The ceremony of boring the ear ib pei formed in the bixth, beventh,
eighth, or twelfth month in older to becure probperity, long life and
health in the months of Kartika, Paubd, Chaitra and Phalguna.
It IS mentioned by Garga and Bnhaspati but not by Manu or Yajnavalkya.
( Vidyarnava’s trans., 40) The rites commencing from Jatakarma to
Chudakarana are performed for girls without mantras. Manu, II, 66,
67; Yajn., I, 13, Vidyarnava’b trans., 54.

(g) Dig., II, 301-302; Manu, 11, 36-40, Apas., I, 5, 8, 21, I, 22, 2-10,
Gaut, 1, 5, 14, Vab., 11, 3, XI, 49-79, Baudh., I, 2, 3, 7-12; Yajn, 1,
14, 37-38; Vidyariiava’s trans., 55, Mandlik, page 161. For special
reasons, Upanayanam can take place in the fifth year for a Brahmin,
in the sixth year for a Kshatriya and in the eighth year for a Vaisya.
Manu, II, 37.

(h) Manu, III, 4; Gaut., IV, 1; Vas., VIII, 1; Yajn., I, 52;
Vidyarnava’s trans., 91.

U) Manu, III, 4-19, Apas., II, 1, 15, 16, Gaut., IV, 2-5, Vas., VIII,
1-2, Baudh., II, 1, 32-38, Vishnu, XXIV, 9-10, Yajn., I, .53.

(;) Churaman Sahii v Gopi Sahu (1916) 37 Cal, 1, 10, /ll;
Vaikuntam v. Kallapiran (1903) 26 Mad., 497.

ORDER IN OBSEQUIES.

m

lo the Mitakshara school is: 1. the aurasa son (k ) — the
•eldest or best of them present at the spot or the adopted
son {k^)\ 2. the grandson; 3. the great-grandson; 4. the widow
(or husband) ; 5. the daughter (Z) ; 6. the daughter’s son (m) ;
7. the brother; 8. the half-brother (n); 9. the brother’s son;
10. the half-brother’s son; 11. the father; 12, the mother;
13. the daughter-in-law; 14. the sister; 15. the sister’s son; 16.
the half-sister; 17. the half-^ster*s son; 18. the sapindas,
samanodakas and sagotras of the father; 19. the maternal
grandfather and his male issue, the other sapindas and
samanodakas of the mother, in order (o) ; 20. the disciple;
21. the priest (litvik); 22. the preceptor; 23. the son-in-law;
24. a friend; and 25. the king (except in the case of a
Brahmin) .

According to the Dayabhaga School (p) the order is as
follows: — the eldest son, the >ounger son, the grandson, the
gieat-grandson, the sonless widow, the widow who is the mother
•of a son disqualified to perform the sraddha, the maiden
daughter, the betrothed daughter, the married daughter, the
•daughter’s son, the younger brother, the elder brother, the
younger brother of the half-blood, the elder brother of the
half-blood, the youngei brothel's son, the elder brother’s son.

ik) Gaut , XV, 13-14, Vajn, III, 16 Mit . Naraharayya’?
trans., 22-23, Nirnaya Sindhu (Bombay od.), 284-290, Dharma

.Sindhu (Bombay ed), Bk Ilf. Ch i\ , Vaiciyanatha Dikshitiyam
(Setlur’s ed.), 571-575, Sarvadhikan. 2nd ed, 80-92; Bhallacharya,
HL., 2nd ed., 656-660; Ghose, HL, 1, 59-78

(/c^) According to the Madana Ratna, the Kaladarga, and some
'Other works, the adopted son comes after the gieat-grandson. Nirnaya
Sindhu, 285.

I/) The man led daughter come*- first and tlien the unmarried
daughter, but it is otlierwise under the Bengal school

im) The daughter’s son performs the funeral riles* only if he takes
the property and comes after the daughter. According to the Vishnii
Smriti, the daughter’s son comes before the wife and daughter.
Yajnavalkya places him after the daughter (IT, 135-136). Vaidvanatha
Dikshitiyam states both the views without indicating its preference.
(Setlur, IT. 573 )

in) According to the Nirnaya Sindhu, both the half-brother and
his son come after the full brother’s son, Nirnaya Sindhu, 284-290;
Sarvadhikan, 2nd ed., 96; Bhaltachar>'a, H.L., 2n(l ed., 659.

(o) According to the extract from Dharma Sindhu as given by
Dr. Sarvadhikan (2nd edn., 87) “On failure of the maternal grand-
father and his male issue, come in order the sons of the father’s and
mother’s sisters. On failure of them, the bandhus of the father, viz.,
grandfather’s and grandmother’s sister’s sons and grandmother’s
brother’s sons. In like manner, on failure of them, the mother’s
bandhus, viz., the mother’s father’s sister’s son, and mother’s mother’s
sister’s son, the mother’s mother’s brother’s son.”

,(p) Sarvadhikan, 2nd ed., 92-94; Bhattacharya, H.L, 2nd ed., 659.

63

962

ORDER IN OBSEQUIES.

the younger half-brother’s son, the elder half-brother’s son^
the father, the mother, the daughter-in-law, the grand-
daughter-in-law, the maiden grand-daughter, the betrothed'
grand-daughter, the married grand-daughter, the great-grand-
son’s widow, the maiden, the betrothed and the married great-
grand-daughters in order, the grandfather, the grandmother, the'
paternal uncle and the sapindas, samanodakas and sagotias,
the mother’s father, the mother’s brother, the sister’s son, the
maternal sapindas and samanodakas, the widow of a diffeient
caste, the unmarried woman kept as a wife, the father-in-law,
the son-in-law, the grandmother’s brother, the disciple, the
priest, the preceptor, the friend, the father’s friend, the
neighbour.

Ordmaril), the parents should not peiform the funeial
rites of theii son, noi the eldei brothei, of the younger; but
if there is no other peison, they can peifoim it (q) .

(q) Vaidyanatha Dikshitijam citing Baudhayana and Devala-
Setlur II. 574-575.

APPENDIX 11.

MALE BANDHUS IN ORDER OF SUCCESSION

ACCORDING TO THE MITAKSHARA.

•

See §§ 516, 521, 524, 552.

(The numbers are the same as in Table B.)

I. Cognate descendants of the deceased owner: — (1) Son’s Atmabandhus.
daughter’s son; (2) Daughter’s grandson (30 Mad., 406; 11

Mad., 287; 17 All., 523) ; (3) Daughter’s daughter’s son (58
Mad., 238; 30 Mad., 406; 31 All., 454; 32 All., 640) ; (4)

Grandson’s daughter’s son; (5) Son’s daughter’s grandson;

(6) Daughter’s great-grandson; (7) Son’s daughter’s
daughter’s son; (8) Daughter’s son’s daughter’s son; (9)

Daughter’s daughter’s grandson; (10) Daughter’s daughtei s
daughter’s son (a) .

II. Cognate descendants of deceased owner’s father: —

(11) Brother’s daughter’s son (10 Beng. L.R., 341); (12)

Sister’s grandson (20 Mad., 342); (13) Sister’s daughter’s
son (6 Cal., 119); (14) Nephew’s daughter’s son; (15)

Brother’s daughter’s grandson; (16) Sister’s great-grandson;

(17) Brother’s daughter’s daughter’s son; (18) Sister’s son’s
daughter’s son; (19) Sister’s daughter’s grandson; (20)

Sister’s daughter’s daughter’s son.

III. Cognate descendants of the paternal grandfather;
the maternal grandfather and his descendants: — (21) Maternal
grandfather (15 Mad., 421); (22) Maternal uncle [65 LA.,

93; 48 I.A., 349, 44 Mad., 753; 23 I.A., 83; 5 Bom., 597 1;

(23) Paternal aunt’s son [65 I. A., 93; A.I.Rt 1937 Mad.,

967; 58 I.A., 372, 59 Cal., 576; 37 Cal., 214] ; (24) MaternaL
uncle’s son [48 Mad., 722 dissenting from 33 Mad., 439; 38
All., 416]; (25) Maternal aunt’s son (28 Bom., 453); (26)

Paternal uncle’s daughter’s son (18 Mad., 193; 1 Lah., 588 ;

(27) Maternal uncle’s grandson; (28) Maternal uncle’s
daughter’s son; (29) Paternal aunt’s grandson (48 I. A., 349;

47 AIL, 172) ; (30) Paternal aunt’s daughter’s son (29 Mad.,

115; 19 Bom., 681) ; (31) Maternal aunt’s grandson (48 I. A.,

86); (32) Maternal aunt’s daughter’s son; (33) Paternal

(a) Nos. 1-10 are nearer than the sister's son who came in only as
No. 11 before the Act; e.g.. No. 2 was preferred to sister’s son in 58
Mad., 238. While his position is now fixed by the Act amongst
sapiftdas, they remain postponed to samanodakas.

964

ORDER OF BANDHUS.

Purubandhus,

uncle's son’s daughter’s son; (34) Maternal uncle’s son’s
•daughter’s son; (35) Paternal uncle’s daughter’s grandson;
(36) Paternal aunt’s great-grandson; (37) Paternal uncle’s
daughter’s daughter’s son; (38) Paternal aunt’s son’s
daughter’s son (49 Mad., 652; contra 54 All., 698 F.B. ) ; (39)
Paternal aunt’s daughter’s grandson; (40) Paternal aunt’s
daughter’s daughter’s son; (41) Maternal uncle’s great-
grandson; (42) Maternal uncle’s daughter’s grandson; (43)
Maternal aunt’s great-grandson; (44) Maternal uncle’s
daughter’s daughter’s son; (45) Maternal aunt’s son’s
daughter’s son, (46) Maternal aunt’s daughter’s
grandson; (47) Maternal aunt’s daughter’s daughter’s son;
(48) Maternal uncle’s great-great-grandson; (49) Maternal
unci e’s great -great -great-gran d son .

IV. Cognate descendants of the pateinal great-grand-

father, the father’s maternal grandfather and his
descendants: — (50) Father’s maternal grandfather, (51)
Father’s mateinal uncle (12 M I.A., 448); (52)

Paternal grandaunt’s son (23 I A, 83); (53) Father’s

maternal uncle’s son; (54) Father’s maternal aunt’s son;

(55) Paternal granduncle’s daughter’s son (47 All, 10);

(56) Paternal grandaunt’s grandson (12 Mad, 155; 23 I.A ,

83; 28 Bom., 453) ; (57) Paternal grandaunt’s daughter’s son;
(58) Father’s maternal uncle’s grandson, (59) Father’s
maternal uncle’s daughter’s son, (60) Father’s maternal
aunt’s grandson; (61) Father’s maternal aunt’s daughter’s
son, (62) Pateinal granduncle’s son’s daughter’s son
(40 P L.R , 37): (63) Paternal granduncle’s daughter’s

grandson; (64) Paternal grandaunt’s great-grandson, (65)
Paternal granduncle’s daughter’s daughter’s son; (66)
Paternal grandaunt’s son’s daughter’s son; (67) Paternal
grandaunt’s daughter’s grandson, (68) Paternal grandaunt’s
daughter’s daughter’s son; (69) Father’s maternal uncle’s
great-grandson; (70) Father’s maternal uncle’s son’s
daughter’s son; (71) Father’s maternal uncle’s daughter’s
grandson; (72) Father’s maternal aunt’s great-grandson;

(73) Father’s maternal uncle’s daughter’s daughter’s son;

(74) Father’s maternal aunt’s son’s daughter’s son; (75)
Father’s maternal aunt’s daughter’s grandson; (76) Father’s
maternal aunt’s daughter’s daughter’s son; (77) Father’s
maternal uncle’s great-great-grandson; (78) Father’s maternal
uncle’s great-great-great-grandson.

V. Then come the other pitrubandhus (Nos. 79 to 165),
namely, the cognate descendants of the paternal gieat-grand-
father’s father, grandfather and great-grandfather; and the
grandfather’s maternal grandfather, and the father’s

ORDER OF BANDHUS.

•965

maternal great-grandfather and the father’s mother’s maternal
grandfather and their descendants. Their succession is not
of much practical importance. The great-great-grandfather’s
grandson’s daughter’s son (91) was recognised as a bandhu
in 17 Cal., 518.

VI. Maternal great-grandfather, mother’s maternal grand- Matrubandhus.
father, and their descendants:— (166) Maternal great-grand-
father (11 Mad., 287) ; (167) Mother’s maternal grandfather;

(168) Maternal great-grandfather’s son; (169) Mother’s
maternal uncle; (170) Maternal great-grandfather’s grand-
son; (171) Maternal great-grandfather’s daughter’s son (48
I.A., 86) ; (172) Mother’s maternal uncle’s son; (173)

Mother’s maternal aunt’s son; (174) Maternal grandf athei ’s
brother’s grandson (8 Cal., 302 P.C.) ; (175) Maternal great-
grandfather’s son’s daughter’s son; (176) Maternal great-
grandfather’s daughter’s grandson (58 562); (177)

Maternal great-grandfather’s daughter’s daughtei’s son (22
Cal,, 339) ; (178) Mother’s maternal uncle’s grandson (5
Mad., 69); (179) Mother’s maternal uncle’s daughtei’s son
(22 Cal., 339) ; (180) Mother’s maternal aunt’s grandson;

(181 ) Mother’s maternal aunt’s daughter’s son; ( 182) Maternal
great-grandfather’s great-great-grandson (58 M.L J.. 562);

(183) Maternal great-grandfather’s grandson’s daughter’s son;

(184) Maternal great-grandfather’s son’s daughter’s grand-

son; (185) Maternal great-grandfather’s daughter’s great-
grandson; (186) Maternal great-grandfather’s son’s daughter’s
daughter’s son; (187) Maternal great-grandfather’s daughter’s
son’s daughter’s son; (188) Maternal great-grandfather’s
daughter’s daughter’s grandson; (189) Maternal great-grand-
father’s daughter’s daughter’s daughter’s son; (190) Mother’s
maternal uncle’s great-grandson; (191) Mother’s maternal
uncle’s son’s daughter’s son; (192) Mother’s maternal uncle’s
daughter’s grandson; (193) Mother’s maternal aunt’s great-
grandson; (194) Mother’s maternal uncle’s daughter^’s
daughter’s son; (195) Mother’s maternal aunt’s son’s
daughter’s son; (196) Mother’s maternal aunt’s daughter’s
grandson; (197) Mother’s maternal aunt’s daughter’s
daughter’s son; (198) Maternal great-grandfather’s great-
great-great-grandson ; (199) Maternal great-grandfather’s

great-great-great-great-grandson ; (200) Mother’s maternal

uncle’s great-great-grandson; (201) Mother’s maternal uncle’s
great-great-great-grandson.

VII. Then come the other matrubandhus (Nos. 202 to
273 ) , namely, the maternal grandfather’s paternal and
maternal grandfathers and their descendants, and the mother’s

966

ORDER OF BANDHUS.

mother’s father’s father and the mother’s mother’s mother’s
father and their descendants. Their succession is not of
much practical importance. The maternal great-great-grand-
father’s grandson (206) [49 Mad., 658] and the maternal
great-great-grandfather’s great-great-grandson (218) [17 Cal.,
518] are recognised as bandhus.

APPENDIX III.

MARUMAKKATTAYAM AND ALIYASANTANA LAW.

1. Marumakkattayam law as administered by the Courts
is a body of customs and usages which have received judicial
recognition and may be taken to be well settled on most
matters. Within the last forty years, the Madras Legislature
has modified the law so as to bring it into conformity with
the growing needs and aspirations of a progressive community.
Marumakkattayam law prevails among the castes who form
£i considerable section of the people inhabiting the West
Coast of South India, viz., the Indian States of Travancore
and Cochin and the districts of Malabar and South Kanara
which formed the ancient kingdom of Kerala. In South
Kanara, the system is known as Aliyasantana. The literal
meaning of the word ‘Marumakkattayam’ is inheritance
through nephews and nieces and its Kanarese equivalent means
much the same. Marumakkattayam is followed by the Nayar
/community; and it obtains also among several other Non-
Brahmin Hindu castes in Malabar, Cochin and Travancore.
The Thiyyas and other cognate castes in North Malabar and
South Kanara are also governed by the system. The chief
castes in Kanara that follow the Aliyasantana law are the
Bants, the Billawas and the non-priestly class among the Jains.
Among the Nambudiri Brahmins of North Malabar, a parti-
'Cular sub-sect known as Payyannur Gramam which originally
iconsisted of sixteen illoms or families but has now become
reduced to about half a dozen, are also follower's of Maru-
makkattayam law^

As already stated, it is essentially custohiary law (a) ;
'Sundara Iyer, J., how-ever, suggested that “Malabar law -is
really only a school of Hindu law. It is true that there are
no sacred writings which are authoritatively binding on the
followers of the Marumakkattayam system but the Maru-
makkattayis are undoubtedly a class of Hindus whose system
of holding property is similar to that of other Hindus and
who have a system of heirs of their own as other Hindus
have” (b). This view overlooks the fundamental difference

(а) V. K. K. V. Gopala Nair v. V.K.V. Raghava Nair A.I.R. 1925
Mad., 460, 462, 21 M.L.W., 215, 219; V. P. Krishnan v. Payankalath
Narayanan (1938) 1 M.L.J., 715, 719; SA., 457/30.

(б) T. Krishnan Nair v. T. Damodaran Nair (1915) 38 Mad., 48,
^ 64 .

Mammakka-
ttayam law,
mainly
customary.

968

MARUMAKKATTAYAM

Legislative

enactments.

Descent from
a common
ancestress.

Tarwad and
tavazhi.

between the two systems; the Marumakkattayam law is*
founded on the matriarchate while all the schools of Hindu
law are founded upon the agnatic family. It is also opposed
to the observations of the Privy Council in T hiruthipalli
Raman Menon v. Raman Menon: “The litigation is between
Nayars in South Malabar and has to be decided according to
the laws and usages of those persons. These laws and usages
are very peculiar; some of them are so well established as
to be judicially noticed without proof. But others of them
are still in that stage in which proof of them is lequired
before they can be judicially recognised and enforced” (c).^
The customary law of the Marumakkattayis has been very
materially altered by the enactments of the Madras Legis-
lature and also by the Regulations of the Indian States of
Travancore and Cochin in the respective areas of their juris-
diction. The British Indian Acts aie, the Malabar Marriage
Act (IV of 1896), the Malabar Wills Act (V of 1898), the'
Madras Marumakkattayam Act, 1932 (XXII of 1933). While
in a Mitakshara joint family the membeis claim their descent
fiom a common ancestoi, the members of 'the family constitut-
ing a Maiumakkattayam tarwad aie descended from a common
ancestress ; in other words, the descent according to the
system of Marumakkatta} am is in the female line

2. Tarwad’ is the name given to the joint family consist-
ing of males and females, all descended m the female line from
a common ancestress ((/). A tarwad may consist of two or
more branches known as thavazhies; each tavazhi or branch
consisting of one of the female members of the tarwad and her
descendants in the female line.

Eveiy^taiwad in its initial stage must have consisted of a
mother and all her childien, male and female, living in com-
mensality with qoint lights in property. And as it expands,
the tarwad is added to by the descendants, both female and
male, of the female members thereof (e). The Madras
Marumakkattayam Act [XXII of 1933, Section 3, sub-
section (i)] defines r tarwad as a “group of persons foim-

(c) (1901) 27 I.A, 231, 24 Mad, 73, 79

id) Mr. Logan say&, “A Malayalee tarwad corresponds pretty closeljr
to what the Romans call a gens with this important distinction
however, that whereas in Rome all the members of the gens trace
their descent in the male line from a common ancestor, in Malabar,
the members of a tarwad trace their descent in the female line from
a common ancestress.” (Logan’s Malabar Manual, Vol. I, pp. 152, 153 )

(e) The children of the male members do not belong to their
father’s tarwad, but to the tarwad of their mother. Pakkaran
Pathumma JJmma A I.R. 1930 Mad., 541. *

AND ALIYASANTANA LAW.

969

ing a joint family with community of property governed by
the Marumakkattayam laW of inheritance” and a tavazhi
used in relation to a female as ^‘the group of persons con-
sisting of that female, her children and all her descendants
in the female line” and a tavazhi used in relation to a male
as “the tavazhi of the mother of that male” [S. 3 (j) i and

ii] (/).

The seniormost male member in the Marumakkattayam
tarwad, the karnavan and in the absence of any adult male
member, the seniormost female member who would be called
the karnavathi is entitled to carry on the management of the
family. According to the Aliyasantana system, the senior-
most member, whether male or female, known respectively as
the ejaman or ejamanthi of the family carries on the manage-
ment. Except to this extent the rules of Aliyasantana law are
generally the same as those of the customary Marumakkatta-
yam law. Of course the latter has been modified by statute
which does not affect the rules of Aliyasantana law. The
Malabar Wills Act still applies to cases governed by
Aliyasantana law.

A tarwad is a family corporation, and every member of a
tarwad has equal rights in the property by reason of his or
her birth in the tarwad (g). On the death of any member,
his or her interest in the tarwad property devolves on the
other members of the tarwad by survivorship.

A tarwad or a tavazhi cannot be created by act of
parties (h) . As both males and females have equal rights
in tarwad property, the limited estate of a Hindu woman, so
familiar in Mitakshara law, is unknown to the Marumakkat-
tayam or the Aliyasantana system (i).

3. It was laid down by a course of judicial decisions by the
middle of the nineteenth century that one or more member^
of a tarwad could not claim partition and separate possession
of their share of the tarwad property without the consent or

(/) The meaning of the terms ‘tavazhi’ and ‘tarwad’ have been
discussed at great length in the decisions in Kenath Puthen Vittil
Tavazhi v. Narayanan (1905) 28 Mad., 182 (F.B.) ; Chakkra Kannan
V. Kunhi Pokker (1916) 39 Mad., 317 (F.B.) ; Imbichi Beevi Umma v.
Raman Nair (1919) 42 Mad., 869; Moithiyan Kutty v. Ayissa (1928)
51 Mad., 574; Ambu Nair v. Utha Amina 1937 M.W.N., 1254.

(g) Kalliani Amma v. Govinda Menon (1912) 35 Mad., 648;
Kabakandi Kama v. Siva Sankaran (1910) 20 M.L.J., 134.

(A) (1928) 51 Mad., 574 supra,

t^') Uthe Amma v. Mam Amma (1935) 68 M.L.J., 372.

Karnavan and
karnavathi.

Ejaman.

Constitution
of a tarwad.

Right to
partition.

970

MARUMAKKATTAYAM

concurrence of all the members thereof (j). This rule was
accepted as settled law and acted upon ever since till the
recent Act (k). A suggestion, however, was thrown out by
Sankaran Nair, J., that the majority of the adult members
or even a minority, when it was in the interests of
the tarwad, could enforce a partition so as to be binding upon
the others ; but it was not given effect to As a tarwad
usually consists also of minor members, a question has often
arisen as to whether a partition entered into by all the adult
members will be binding on the minors. Such a partition
has been held binding on the minors if the arrangement is
fair, just and bona fide and if due regaid has been paid to the
interests of the minors (Z).

The mode of partition, whether it ought to be per stirpes
or per capita, has been the subject of conflicting judicial
opinion (ni) , The accepted view is that partition should be
per capita and this has been affirmed by section 40 of the
Madras Marumakkattayam Act. Owing to the absence of a
right of compulsory partition, and the consequent inciease in
the number of members and the impossibility of living together
under one roof, instances have often arisen where blanches
of a tarwad have lived separate for long, enjoying the properties
of the tarwad separately. How far such a state of things
would, after the lapse of considerable time, give use to an
inference of partition has been discussed m some decisions
and the \iew that has found favour is that separate residence,
separate assessment, separate management, etc., are prima
facie evidence of an intention to divide (n) , The result of

(y> 1 Mad. Sudd. Dec, 118, A S. No. 28 of 1814 and S A No. 4

of 1857; Mad Sudd Dec. (1857), 120.

(A:) Puthissen Maniyannoor v Thozukat Pullaniyil (1917) 32

M.L.J., 489, Siilaiman v. Biyaththumma (1917) 21 C W.N., 553, 32
M L.J , 137, PC; Vasudevan v Sankaran (1897) 20 Mad, 129, 141
(F.B. I, Arayalprath Kunhi Packer v. Kanthilath Ahmed Kiiti Haji
(1906 ) 29 Mad, 62; Thiruthipalli Raman Menon v. V ariangattil

Palisseri Raman Menon (1900) 27 I A., 231, 24 Mad, 73, Naraimhiitti
Amma v. Achuthankutti Nair (1919) 42 Mad., 292.

(A:^) Veluthakal Chirudevi v, Veluthakal Tarwad Karnavan (1916)
31 M.L.J., 879.

(/) (1906 ) 29 Mad., 62 supra, (1916) 31 M.L.J , 879 supra;

Govindan Nair v. Madhavi (1932) 62 M L.J , 712, Sreedevi Nethiar v.
Peruvunni Nair (1934) 67 M.L.J., 771.

(m) (1917) 21 C.W.N., 553, 32 M.L.J., 137, P.C. supra; (1934)
67 M.L.J , 771 supra, Narainikutti Amma v. Achuthankutti Nair (1919)
42 Mad., 292.

(n) Nanu v. Puvayil Theyyan (1911) 1 M.W.N., 281; (1917) 21

C.W.N., 553, 32 M.L.J., 1.37, P.C. supra, Appa v. Kachai Bayyan Kutti
A.I.R. 1932 Mad., 689, 35 M.L.W., 444. *

AND ALIYASANTANA LAW.

971

.an agreement entered into by all the members of a tarwad
to have a partition of th^ properties would seem to be that
the incident of impartibility attaching to the property as
iarwad property would no longer hold good and the mem-
bers thereafter would hold the properties as ten^nts-in-
common. The coparcenary is thereby disrupted and severance
in status takes place (o). When the major portion of the
family estate has been divided and a small portion is kept as
joint property, the family corporation is regarded as com-
pletely dissolved (o^).

4. As under the Mitakshara law, so under the Marumak- Conversion,
kattayam system, conversion of any member of a tarwad from
Hinduism to any other religion creates a dissolution of the

tie which bound him to the tarwad; the rights and obliga-
tions indident to his status as a member of the tarwad therefore
•cease to exist (p). The Caste Disabilities Removal Act,
however, preserves to him the rights which he had at the
time of conversion. But it does not enlarge the
rights of the convert and give him greater rights than
what he possessed before; for instance, it does not entitle him
to sue for partition of tarwad property {q). Reunion among
the members of the tarwad who have already become divided
is not a feature of the Marumakkattayam system though
there is one instance of reunion being recognized among the
Aliyasantana community.

5. The customary and judge-made law as regards partition Statutory
has, like other topics of the Marumakkattayam system, right to
been radically changed by the Madras Marumakkattayam Act,
chapters Vt and VII. By this enactment, which applies only

to Hindus governed by the Marumakkattayam law of inherit-
ance, tavazhies represented by the majority of their major
members have been given the right to claim partition (S. 38).

This provision is also made applicable to tavazhies possessing,
separate properties (S. 41). The ascertainment of the shares
at partition is per capita and not per stirpes (S. 40). The
Act schedules a number of tarwads to which its provisions
relating to partition have 'not been made applicable. But
two-thirds of the majoi members of any such tarwad can get

(o) Govindan Nair v. Madhavi (1932) 62 M.L.J., 712, 716 supra;
S.A. 1739 of 1918.

(o^) See S.A. 1815 of 1911.

ip) Kunhichekkan v. Lydia Arucanden (1912) M.W.N., 386; 11
M.L.T., 232; Adam Haji v. P, Kunkan A.I.R. 1938 Mad., 242, 46
M.L.W., 772.

*(^) Pathumma v. Raman Nambiar (1921) 44 Mad., 891, F.B.

972-

MARUMAKKATTAYAM

Succession.

it registered as partible by a petition to the Collector under the
statute. (Ss. 42, 45 and 47). The Act also enables a tarwad
to be registered as impartible by the Collector on the applica-
tion of two-thirds of its major members and also to
obtain cancellation of such registration at any time (Ss. 43
and 44). Section 39 of the Act provides for compulsory
partition m case of change of religion of any member. As
a necessary corollary to the acquisition of the right of partition
under the Marumakkattayam Act, 1932, a severance
of the joint status among the members is effected by a
unilateral declaration of intention to divide or by the filing
of a suit or by a notice demanding a share (r). It has been
laid down that the shaie of a tavazhi in a tarwad which is
liable to compulsory partition can be attached and sold by a
creditor in execution of a decree against a tavazhi or an
individual who is a tavazhi under the Act (r^). And registra-
tion of the tarwad as impartible under section 43 of the Act
cannot take away the rights of the attaching ci editors (sj .
These doctrines, depending as they do, not upon any principle
of Hindu law^ but upon general principles of equity and
good conscience have been applied to the solution of pio^
blems arising out of the provisions of the Marumakkattayam
Act.

6 Next, as to the system of inheritance among those
governed by the Marumakkattayam law. Questions of in-
heritance can only arise in respect as to individual
property oi of property left by an extinct tarwad. As
early as 1864, the question of the devolution of the self-acquired
property of male member of a tarwad came before the Madras
High Court and it was held that, by the law of Malabar, all
acquisitions of any male member of a tarwad, which he had
not disposed ®f in his life time, lapsed to the tarwad on his
death and formed part of its property. The right of the
acquirer to mortgage or sell his self-acquisitions was also
recognised {t). This decision has been affirmed by a
majority of the Full Bench in Govindan Nair v. Sankaran

(r) Kunchi Arnma v. Minakshi Amma (1936) 59 Mad., 693, 70
M.L.J., 114.

(fi) Subramanyan Tirumurupu v. Narina Tirumuruppu (1938)
1 M.LJ., 710.

(5) Krishnan v. Narayanan Nayar (1938) 1 M.L.J., 715.

it) Kallati Kunju Menon v. Palat Erracha Menon (1864) 2
M.HC.R, 162. •

AND AUYASANTANA LAW.

973

Nair (m) and has been followed in later cases (v) though
it was felt that the law enunciated therein was opposed
to the consciousness of the people (m;) . A Full Bench of the
Madras High Court has held, with regard to the self-acquisi-
tion of a female member, that it descends to her tavazhi, in
other words to her own issue; and in their default, it devolves

on her mother and her descendants (jt).

•

Under the Aliyasantana law, there is no such distinction as
regards the devolution of self-acquired property belonging
to a member of the tarwad, such property whether of a male
or female, goes to the nearest branch, and, where there
are more branches than one standing in the same degree of
relationship, they inherit jointly (y). The Madras Maru-
makkattayam Act has altered the law as laid down by the
Full B^nch decisions in Govindan Nair v. Sankaran Nair and
in Krishnan v. Damodaran (z), so far as Marumakkathayi
Hindus are concerned.

Sections 19 to 24 prescribe rules of intestate succession to
property left by a Marumakkathayi male. The nearest
preferential heirs to the property left by a male member are
his mother, widow and children; and any part of the pro-
perty can be inherited by the tavazhi of the deceased only in
cases where the intestate has left neither mother nor children
nor lineal descendants in the female line. Provision is also
made for the succession of the intestate’s father in certain con-
tingencies. Sections 25 to 28 provide for the succession to the
properly of a female. The nearest heirs are the children and
lineal descendants in the female line. Next in order comes
the mother’s tavazhi and, in default, the husband and the
maternal grandmother’s tavazhi, take in moieties;* in default
of either, the whole is taken by the other.

The right of testamentary disposition has b^en recognised Testamentary
in the Marumakkattayam system. The Malabar Wills Act
(V of 1898) provides rules for the execution, attestation.

(tt) (1909) 32 Mad., 351 F.B.

(v) Abiivakkar v. Kunhi Kuttiyali (1922) 16 M.L.W., 768; Chathu
Nambiar v. Sekharan Nambiar (1924) 47 695; Paramesvara v.

Narayana A.I.R. 1928 Mad., 172, S.A. 76/35.

{w) Vishnu Nambudri v. Akkamma (1911) 34 Mad., 496, Chakkra
Kannan v. Kunni Pokker (1916) 39 Mad., 317 F.B.; Abdureheman v.
Hussein Kunhi (1919) 42 Mad., 761.

(jc) Krishnan v. Damodaran (1915) 38 Mad., 48 F.B., distinguish-
ing Govindan Nair v. Sankaran Nair (1908) 32 Mad., 351 F.B.

(y) Mangappa Ajei v. Marudai (1916) 39 Mad., 12; Antamma v.
Kaven (1884) 7 Mad., 575; Timma v. Daramma (1^7) 10 Mad., 362.
•<z) (1908) 32 Mad., 351, F.B.; (1915) 38 Mad., 48 F.B.

974

MARUMAKKATTAYAM

Attala-

dakkam.

Marriage.

alteration, revocation and revival of wills of persons governed
by the Marumakkattayam and Aliyasantana laws of inherit-
ance. Similar provisions regarding testamentary disposition
are contained in the Nayar regulations of Cochin and
Travancore.

7. There is a form of succession known as Attaladakkam
which literally means “taking on extinction”. It is defined as
the right of succession by virtue of distant relationship to a
divided branch of a tarwad when that branch becomes extinct.
The attaladakkam heir intercepts an escheat to the Crown.
He succeeds only to such of the properties of a tarwad as
have not been disposed of by its last members (a). How far
an attaladakkam heir who succeeds to the property of an
extinct tarwad can question an alienation by the karnavan of
such tarwad is a moot point and conflicting opinions have
been expressed on the subject (6). Whenever a tarwad
becomes extinct, the other tarwads who are divided from that
tarwad are entitled to succeed as attaladakkam heirs. But
which of the tarwad or tarwads have the preferential claim,
whether it is the tarwad which is most nearly related in blood
or the tarwad which divided last is not yet finally settled (c).
When the succession opens m favour of a number of tarwads
which have become divided from the extinct tarwad simultane-
ously, the division of the properties is per capita
amongst the total numbei of members of all the tarwads in
whose favour the succession opened (d). It may also be
mentioned that tarwad property in the hands of the last
surviving member of the tarwad is on the same footing as his
self -acquisition (e). Certain persons, who were not heirs
before, ^ave been recognised by the recent legislation as heirs
taking before the attaladakkam heir.

8. Marriage as an institution out of which inheritance
necessarily followed was not recognised by the customary
law before the Malabar Marriage Act, 1896. This was
an inevitable corollary of the matriarchal system of

(a) Thayyd Mammad v. Purayd Mammad (1921) 44 Mad., 140.

(b) (1921) 44 Mad., 140 supra. Secy, of State v. Dugappcr
Bhandary A.I.R. 1926 Mad., 921.

(c) A.I.R. 1926 Mad., 921 supra, Gopala Nair v. Raghava Nair
A.I.R. 1925 Mad , 460, 21 M L.W., 215 , Sankunni v. Rama Panikker
A.I.R. 1929 Mad., 346.

(d) Sreedevi Nethiar v. Peruvunni Nair (1934) 67 M.L.J., 771.

(e) Thunga v. Nanikutty Amma A.I.R. 1927 Mad., 371; Alami
Komu (1889) 12 Mad., 127.

AND ALIYASANTANA LAW.

975

holding property which gave the wife and children
rights in the tarwad of their origin. By Act IV of
1896, the Madras Legislature conferred statutory rights
of inheritance on the widow and children of any male
following the Marumakkattayam or Aliyasantana law of
inheritance if his marriage was registered under the
provisions of the Act. The Act made elaborate provisions
regarding registration of ' marriages, divorce and dissolution,
maintenance, guardianship and succession to the property of a
married woman dying intestate. The Malabar Marriage Act,

1896, so far as Hindus following the Marumakkattayam law
are concerned has been repealed by section 2 of the Madras
Marumakkattayam Act, 1932, which lecognises the validity of
mairiages in customary forms and provides for their regis-
tration and dissolution (/). It contains provisions for the
maintenance of wives and minor children as well as for the
guardianship of minor wives and children (g). Similar
provisions in the Nair Regulations have also altered the
customary law in the two Indian States. The Madras
Marumakkattayam Act, unlike Hindu law, enforces strict
monogamy.

9. Adoption as a mode of perpetuating any tarwad which Adoption
is likely to become extinct, has been recognised under the
Marumakkattayam and Aliyasantana systems from early
times. The reasons and objects of an adoption are wholly
secular and not religious (g^). The adoptive tarwad in the
two systems takes the place of the adoptive father under the
Mitakshara law. There are no ceremonies prescribed, the
non-observance of which would in any way invalidate an
adoption. As the object is the perpetuation of tarwad.
females are, very often though not invariably among the
adoptees. More than one individual can be adopted at the
same time and adults as well as minors are capable of being
adopted. The absence of a female among the adoptees will
not make the adoption invalid (A). The adoptees usually
belong to the same vamsom which more or less corresponds to
the gotra or clan. The Privy Council have held that the

(/) Chapter II of Madras Act, 1932 (XXII of 1933).

(g) Chapter III of Madras Act, 1932 (XXII of 1933).

(g^ The sraddhs for the female ancestors are performed b> their
lineal descendants in the tarwad and those of the male members, by
the junior male members. The persons adopted into a tarwad per-
form, like the anandravans, the sraddhs of the deceased members of
the adoptive tarwad. The expenses of the above sraddhs are tarwad
expenses.

(A) Subramanyan v. Paramaswaran (1888) 11 Mad., 116; Secy, of
Stat^y. Santaraja Shetty (1913) 25 M.L.J., 411.

m

MARUMAKKATTAYAM

Position and
powers of the
karnavan.

karnavan alone cannot adopt at his own discretion without
the consent of the other members of the tarwad in the absence
of a custom to the contrary (i). The last surviving
member of a tarwad can make a valid adoption by himself.
The right to interdict an adoption is one of the recognised
rights of a member of a tarwad. As instances of
adoption are rare, the rights and obligations of the
adoptee in relation to the tarwad of his birth have not
come up for decision frequently and cannot be said to be
settled (/). In the Stale of Travancore, the prevalent view
seems to be that where an entire taiwad is adopted into another
tarwad, the adoptees retain the ownership of the properties
belonging to the tarwad of their origin. But where only a
few members of a tarwad are adopted into another, the
adoptees lose their rights m their natural family. The adoptee
acquires all the rights in the family of adoption just as if
he was born into it and the subsequent birth of a child
in the adoptive family to an original member thereof does
not take away the rights of members adopted into it (k),

10. The term ‘kainavarr has been defined in the
Madras Marumakkattayam Act as “the oldest male
member of a tarwad or tavazhi, as the case may be, in whom
the right to manage its propeities vests, or, in the absence of a
male member, the oldest female member or wheie by custom
or family usage the right to such management vests in the
oldest female member, such female member” ( / ) . This
definition corresponds to the older c ustomary c onnotatioii of
the term. An exception to the ordinary rule of management
by the eldest male in Malabar tarwad i*^ to be found in the
Kovil^ams composing the Zamoriirs familv, the Walluvanad
Raj'a’s family etc Some of the oldei writers on the Malabai
law weie of opinion that the Maiumakkattayam system vested
the ownership' of tarwad pioperly m the females and it might
probably ha\e been) due to that of state of things that conten-
tions were put foiwaid that slreesivothu (women’s property)

(f) Raman \Ienon \ Raman Menon (1910) 27 I A , 231, 24 Mad,
73

(;) See Andale \ Sen v of State (1893) 3 M L.J , 242, S.A. 1585
of 1894, S.A. 666/1930.

{k) The ruling family of Travancore would have long ago become
extinct but for the succe‘^slve adoptions in the 13th century, in 1684,
in 1724 and 1857, and more recently about a quarter of a century
back.

(/) Act XXII of 1933, Section 3.

kUb AUVASANf ANA UW.

tarwads, in which women alone are entitled, exist even now (m ) .
The prevalent view is that such tarwads have become obsolete.
Even in an ordinary tarwad, there is nothing to prevent the
members agreeing to or acquiescing in the management being
in the senior female and if the evidence is sufficient to establish
such consent or acquiescence, there would be nothing illegal
in such an arrangement which can also be established by proof
of a special custom (/i). The position of a karnavan as
head of the family comes to him by birth. It cannot be
created by contract and it is not analogous to that of a meic
trustee, oflScer of a corporation or the like (o). “In him
(karnavan) is vested actually (though in theory in the females)
all the property movable and immovable belonging to the
tax wad. It is his right and duty to manage alone the property
of the tarwad, to take care of it, to invest it in his own name
(if securities or by purchasing in his own name, lands) and
to receive the rents of lands. Apart from any question of
necessity, he can by himself grant kanoms (customary
usufructuary mortgages for twelve years) or melchaiths
{kanoms given to a stranger to redeem an earlier kanom) or
an otti (a usufructuary mortgage with a right of preemption).
In the same way, he can also grant leases for a limited period.
He is not accountable to any member of the tarwad in respect
of the income nor can a suit be maintained for an account
of tarwad property in the absence of fraud on his part. He
is entitled in his own name to sue for the purpose of recover-
ing or protecting property of the tarwad. Some of his
acts in relation to the above matters cannot be legallv
questioned by the tarwad if he has acted bona fide. If any of
his acts have been done mala fide, they can be questioned by
the member of the tarwad and he may be removed for
mala fides in his acts, or for incompetency to
manage and other causes. He is interested in the

(m) Muhammad Kunhi v. Packknchi Amma (1923) 46 Mad., 650
F.B.; Bivi JJmah v. Keloth Cheriyath Kutti (1910) M.W.N., 693; Chatti
Soopi V. Kannan Nayar A.LR. 1930 Mad., 418, (1929) M.W.N., 873.
Strong and cogent evidence must be given to establish a custom en-
titling the seniormost female member to manage in preference to
senior male, Krishnan Nair v. Kambi (1937) M.W.N., 299, A.I.R. 1937
Mad., 544.

(n) A.I.R., 1930 Mad., 418 supra, A.I.R. 1937 Mad., 544 supra

(o) Eravanni Revivarman v. Ittapa Revivarman (1876) 1 Mad.,
153; Vasudevan v. Sankaran (1897) 20 Mad., 129, 133, 141, F.B.;
Kenath Puthan Vittil v, Narayan (1905) 28 Mad., 182, 186, F.B. As to
the powers of a Karnavan, see Kunhamod Kajee v. Kuttiath Hajee
(1880) 3 Mad., 169; Narayani v. Govinda (1884) 7 Mad., 352;
Moyidikutti v. Krishnan (1887) 10 Mad., 322, F.B.; Kalliani Amma v.
Govihda Menon (1912) 35 Mad., 648; Govindan Nair v. Narayanan
Nair (1912) 23 M.L.J., 706.

64

Right of
management.

978

MARUMAKKATTAYAM

Fully

reprebenlb
the tarwad

property of the tarwad as any member of it and to
the same extent as each of the other members. All the
members including the karnavan are entitled to maintenance
out of the tarwad property. His management may not be as
prudent or beneficial as that of another manager might be;
but unless he acts mala fide or with reckless or utter in-
competency he cannot be renioved from management” (p).

A karnavan has two capacities, a temporal and a spiritual
one (q ) : in the latter capacity he officiates at family cere-
monies. He is the guaidian of the minor members of the
family (r) He has to protect, educate and give maintenance
to the other members ( 5 ) I^arge as his powers are, they are
essentially powers of management (/). Even though a
karnavan is not ordinarily accountable, in a suit for his
removal, the junior members can ask for appropriate reliefs
including the rendeiing of account iu) S 32 of the
Marumakkattayam Act makes it obligatory on the karnavan
to maintain and give inspection of accounts once a yeai
to the junior members and also to allow them to take copies.

In the woids of Holloway, J , “A Malabar family speaks
through its head, the karnavan, and in Courts of justice, ex-
cept in antagonism to that head, can speak in no othei
way”. It has therefore been held that it is only under very
special circumstances that a junior member of a tarwad can
maintain a suit on behalf of the tarwad (i;). But where the
karnavan has made an impropei alienation, Couits will inter-
fere at the instance of a junioi member (w) . When a

(py Varanakot N nr ay an v Narayanan (1888) 2 Mad., 328, 330.

(9) Krishnan Kidaiii \ Raman (1916) .39 Mad., 918

(r) Ukkandam Nair \. Unikumaran (1896) 6 M.LJ, 139.

(5) Kalliani Amnui \ Govinda Menon (1912) 35 Mad., 648.

it) Raman Menon v Raman Menon (1902) 27 I.A , 231, 237, 24
Mad., 73 P.C.

(a) Karunakara v Kuttikrishna (1917) 5 M.L W , 511, 38 I C.,
666; Manavedan v. Sreeden (1927) 50 Mad, 431.

(v) V asudevan v Sankaran (1897) 20 Mad , 129, 133, F B , Soopi
V. Maryoma (1919) 43 Mad, 393, Kunnath Packi v. Kunnath Muham-
mad (1925) 49 MLJ 513, Chen Pangi v Unnal Achan (1916)
32 M.L.J., 323: Raya of Arakal v Churia Kunhi (1915) 29 M.L.J.,
632, Abdulla Koya v. Eacharan Nan (1918) 35 M.L.T., 405; Kunhi
Kutti All V Muhammad Haji (1931) 54 Mad., 239, 60 M.L.J., 450

{w) Until V Kunchi Amma (1891) 14 Mad., 26, Anantan v.
Sankaran (1891) 14 Mad., 101, Bikutti v Kalandan (1891) 14 Mad.,
267; Vattavatta Nair v. Kuppasan Menon (1919) 36 M.L.J., 630; Kunhi
Fokker v. Valia Bappotty (1919) 37 M.L.J., 544.

AND ALIYASANTANA LAW.

karnavan refuses to file an appeal from a decree against the Exceptional
tarwad, the junior members are entitled to file the
appeal {w^). After some conflict of opinion, it was finally members,
settled in Vasudevan v, Sankaran (x) that a decree against
the karnavan in a suij in which he is joined as a defendant
in his representative capacity, which he honestly defends^
is binding on the other members of the family, though not
actually made parties. It is not necessary however that the
karnavan should have been impleaded as such. In
determining whether a decree was obtained against the
karnavan as representing the tarwad, Courts have not insisted
upon any particular form of words in the frame of the suit
but have attached more importance to the nature of the debt
and the substance of the claim (y). Where a decree was
allowed ’to be obtained against a kainavan as representing
the tarwad owing to the negligence of the karnavan, it can
be set aside by proper proceedings at the instance of the
junior members (z) . An ex parte decree against the
karnavan is just as binding on the tarwad as any
other decree. The decrees passed against the kainavan
bind the junior membeis but they are not paities in the
sense that they are bound to put forward any individual
right of theirs, which may be adverse to the tarwad, in exe-
cution under section 47 of the Civil Procedure Code (a).

(m;1) Kalliani Amma v. Sankaran Nair (191J)) 10 M.L.W., 220.

(x) (1897) 20 Mad., 129, F.B.

•

(y) Pappi Amma v. Rama Aiyar A.I.R. 1937 Mad., 438; Rayappan
Nair V. Kumaran (1918) 35 M.L,J,, 51; Vesu v. Kannamma (1926)
51 M.L.J., 282; Vishnu v, Udayavarma (1934) 67 M.L.J., 638; Narayam
V. Sankunni (1936) 71 M.L.J., 545; Manakat Velari%ma v. Ibrahim
Lehhe (1904) 27 Mad., 375.

(z) Thenju v. Chimmu (1884) 7 Mad., 413; Moyidikutti v.

Knshnan (1887) 10 Mad., 322; Narayam v. Sankunni (1936) 71
M.L.J., 545; but see Madhavaiya v. Keralavarma (1903) 13 M.L.J.,
68 where a strict view regarding the avoidability of a decree
obtained against a karnavan has been taken that unless the
decree is the result of fraud and collusion between the karnavan
and the opposite party it cannot be vitiated. Where a decree
against a karnavan is a decree on an alienation by him it is not suffi-
cient to say that the alienation was fraudulent in order to get the
decree set aside for any fraud which vitiated the abenation was a
matter in issue m the suit leading to the decree (Si. A. 703 of 1931).
The view expressed by Ramesam, J., m Durgamma v. Kechammayya
(1925) 48 M.L.J., 351 is opposed to this,

(a) Narayana Nambudri v. Theva Amma (1928) 51 Mad., 46 F.B.
diss^ting from Kamal Kutti v. Ibrayi (1901) 24 Mad., 658 and
MarivittiL Mathu Amma v. Pathram Kunnot Cherukot (1907) 30
Mad., 215.

980

MARUMAKKATTAYAM

Power to
alienate.

Simple loans.

11 . Like the manager of an infant heir, a karnavan has
only a limited power of alienation. A distinction has been
made between his powers of alienation over movable and im-
movable property. He has absolute powers of disposition
over movables and properties in the nature of movables
as well as the right to realise the debts due to the family
in any manner he likes ( 6 ). This absolute power over
movables must, it would seem, be limited only to such
disposals as would be necessitated by the customary
mode of enjoyment of property (c). With respect
to alienations of immovable property, there seems to be a
lecognised distinction between sales on the one hand and
other kinds of alienations on the other. From very early
times, the law has been laid down that a pre-requisite of a
valid sale of tarwad property is that all the members should
assent to it though a capricious dissent may be ignored (c^)
As regards other alienations of a limited charactei and the
creation of simple debts, the rule is the same as
laid down in the case of a guardian of an infant (rf) .

Imperative necessity or benefit to the taiwad is the
sine qua non of a valid alienation of propel ty oi

the contracting of an unsecured debt on behalf of the
tarwad. The lender is bound to enquire into the necessities
for the loan and to siUisfy himself that the manager is acting,
in the particular instance, for the benefit of the estate; but

he 18 not bound to see to the application of the money (c).

The fact that the money borrowed was utilised foi a tarwad
purpose is not by itself sufficient to protect the lender (/).
It must be shown that credit was given to the karnavan as
such (g). Where the ordinary borrowing powers of a karna-
van have been curtailed by means of a family agreement, anv

(6) Subraniania Pattar \ Krishna Embranden (1920) 39
590; Knshnan v Govindan (1921) 41 381.

(c) Govinda Panihker v KarthiyaMiii (1931) 61 M L.J., 35.

(fi) Edathil Etti v. Kopashon Nayar (1862) 1 M H C.R., 122;
Kondi Menon v Sranginreagatta Ahamniada (1862) 1 M II.C R , 248,
Varankot Narayanan Nanibudn v Varankol Narayanan (1880) 2 Mad,
328; Kunhaniod Hajee v. Kuttiah Hajee (1881) 3 Mad., 169; Kombi v.
Lakshmi (1882) 5 Mad., 201; Vasudeva v. Narayana (1883) 6 Mad.,
121; Kalliani v Narayana (1886) 9 Mad, 266, Vasudevan v. Sankaran
(1897) 20 Mad. 129. F.B.

(d) Vatavatta Nair v Kenath Piithen V Util Kuppassen Menon
(1919) 36 M.L.J, 630

(c) Hanoonutn Per shad's ca«^e (1856) 6 M l.A., 393

(/) S.A, 268/16, SA, 877/11, SA. 67/21, A.S., 70/11, C.R P.,
232/06; CR.P. 1070/16

(^) Paramal v. Narayan A.I.R. 1932 Mad., 701, 35 M.L.W., 452.

AND ALIYASANTANA LAW.

borrowing in derogation of it will not be binding on the
tarwad if the creditor . has notice of the same (A).

In the absence of necessity, the karnaVan cannot ordi-
narily grant a melcharth or renew an old kanom^ long
in advance of the expiry of the prior term, but it has
been held that such tiansaclions are not void but only void-
able. If in all other lespects it is good and the karnavan
who granted it is in office at the expiry of the prior term
and does not disavow the transaction, it is valid (f). Where
an alienation of tarwad property is made by the karnavan act-
ing in conjunction with the seniormost anandiravan, such fact
is ordinarily sufficient evidence of the assent of the family (/) .

Where the alienation is made by all the adult members, there
is a presumption in favour of the pioprietv of the alienation
as being, supported by benefit or necessity to the tarwad.

But this presumption is a rebuttable one and it is open to the
minor members to challenge the transaction by adducing
proof to the contrary (A) .

12. The onus of proving the validity of alienations Alienation,
by karnavans has been held to be the same as it is in the case
of an alienation by a manager of a Hindu family. It lies pri- Onus of
marily on the creditor to prove the validity of the alienation (/) .

A karnavan cannot start a trade or embark in speculation so
as to bind the family (m) ; but it has-been held that he can
validly start a kuri or a chit fund for the benefit of the tarwad
or become a subscriber to a kuri, on behalf of the tarwad,
started by others. If the tarwad has had the benefit of the
kuri money, it is bound to repay the same out of the tarwad
funds (n).

(A) Rama Vadhyar \. Knshnan Nair A.I.R. 1926 Mad., 398, 23

L. W., 186, 125 I.C., 65, and S A., 67 of 1921, S.A., i681/25; Ambu
Nair v. Uthamma (1937) M.W.N., 1254, A.I.R. 1938 Mad., 202.

(i) Tnvikrama Kcnuraya v. Sankaranarayana Varhunavar (1932)
63 M.L.J., 743 F.B.

(;) Kombi v. Lakshmi (1882) 5 Mad., 201; Meloth Kannan Nair
V. Kodath Kammaran Nair (1914) 1 L.W., 102; Pappi Amma v. Rama
Iyer A.I.R. 1937 Mad., 438.

(A) Chalil Krishnan v Rama Marav A.I.R. 1935 Mad., 38; (1935)
40 M.L.W., 541.

{1) Vattavatta Nair v. Kenath Puthen Vittil (1919) 36 M.L.J., 630;
Subramaniyam Pattar v. Kizhakkara Uthanathil Raman (1923) 44

M. L.J., 596; Hajee v. Hajee (1881) 3 Mad., 169; Kutti Mannadiyar
V. Payanu Muthen (1881) 3 Mad., 288.

im) Abdureheman Kutti Haji v. Hussain Kunhi Haji (1919) 42
Mad., 761.

in) Narayanan Nambudn v. Sundara Iyer A.I.R. 1936 Mad., 463;
Anahtha Pattar v. Padmanabha (1938) 1 M.L.J., 79.

982

MARUMAKKATTAYAM

Madras Maru-
makkattayam
Act, 1932.

Section 33.

Section 34,

Karar.

Sections 33 and 34 of the Madras Marumakkattayam Act,
1932, have modified the customary common law regarding the
karnavan’s powers to a certain extent. Section 33 says:

“(1) Except for a consideration and foi tarwad necessity or
benefit and with the written consent of the majority of the
major membeis of the tarwad, no karnavan shall sell immov-
able property of the tarwad oi moitgage with possession or
lease such pioperty foi a period exceeding twelve years

(2) No mortgage with possession oi lease with premium
returnable wholly or in part, of any such propeity executed
by a karnavan for a period not exceeding twelve years, shall
be valid unless such mortgage or lease is foi consideration
and for tarwad necessity or benefit.

(3) Nothing contained in this section shall be deemed to
restrict the power of the karnavan to grant, in the usual
course of management, for a period not exceeding twelve
years, any lease without premium returnable wholly oi in
part, or the lenewal of an existing kanom”

Section 34 enacts that “no debt contracted oi moitgage
without possession executed by a karnavan shall bind the
tarwad unless the debt is contracted oi the mortgage is exe-
cuted for tarwad necessity”.

In order that a promissoiy note executed by a karnavan
should bind the estate, it is not necessary that the signature
should purport to be as karnavan. It is sufficient if it is
executed in his character as karnavan and that is made clear
somewhere in the note (o).

A karnavan cannot, by his own will, delegate his powers
of management so as not to be able to resume it at will (p).

13. Ordinarily the membeis of a tarwad are, when they
all consent and are of one opinion, entitled to regulate the
karnavan’s agency and to limit his authority {q). A karar
or agreement relating to the management of the family to
which the karnavan and the majority of the adult members
of the tarwad are parties is binding on the tarwad When
they are not all agreed the karar is not binding on the dis-

(o) Pappi Amma v Rama her A T R. 1937 Mad, 438.

ip) Krishna Menon v Krishnan Nair (1921) 40 M.L J., 338;
Karunakara Menon v Kuttikrishna Menon (1917) 5 M.L.W , 511;
Raman Kiitti v. Beevi Umma A.I,R. 1929 Mad.. 266.

(q) Cheria Pangi Achan v. Unnal Achan (1917) 32 M.L.J., 323;
Sankunni Mannadiar v. Krishna Mannadiar (1928 ) 51 Mad., 320;
Pangi Achan v. Bheeman (1916) 32 I.C., 501. «

AND AUYASANTANA LAW.

983

sentient members only to the extent of not depriving them of
their right to succeed as karnavan or their right to mainten-
ance (r). A karnavan confirmed by a karar can be removed
just like any other karnavan (s). The effect of such karars
is generally only to limit the powers of a karnavan in office
at the time and they cannot therefore bind the successor’s
authority unless it was expressly or impliedly settled in the
karar that it should be bindihg on the successors as well
and they themselves consented to it (^).

14. A kainavan can renounce his office of karnavanship
{u). Section 36 of the Madras Marumakkattayam Act provides
that any karnavan may, by registered instrument, give up his
rights as karnavan. Where a karnavan renounces his rights
or is removed by a decree of Couil, the senioi anandiravan
without* any kind of appointment ipso facto becomes
kainavan (v).

15. A karnavan can be removed from the management by
a decree of Couit. The theory underlying such removal is that
the institution of karnavanship is for the benefit of the tarwad
and the continuance of a karnavan in office is dependent on
a proper discharge by him of his obligations to the family.
When he fails to do his duty and when his retention in office
becomes injurious lo the interests of the tarwad he forfeits
his office (w). The Court adopts the remedy of removal as
necessary to protect the interests of the tarwad. It is not
every failure to perform his obligations that will lead to
the removal of karnavan, but only such misconduct as would
make it necessary in the interests of tarwad to have him
removed (x).

(r) Kunhammeyan v Kunhiso A.I.R. 1933 Mad., 169; (1917) 32

M.L J , 323 supra. •

(s) Chindan Nambiar v, Kunhi Raman Nambiar (1918) 41 Mad.,
577, F.B., but see Manavedan v. Manavedan A.I.R. 1936 Mad., 817

it) Sankaran v. Sreedharan (1925) 48 M L.J., 691; (1928) 51

Mad., 320 supra, 65 I.C., 805 supra; 32 I.C., 501 supra

(u) Kenath Puthen Vittil Thavazhi v. Narayanan (1905) 28 Mad.,
182.

(v) (1928) 51 Mad., 320 supra; Valia Kaiinal v. V elluthadatha
Shamu (1871) 6 M.H.C.R., 401; Nemmanna Kudre v Achmu Hengsu
(1920) 43 Mad., 319.

iw) (1920) 43 Mad., 319 supra.

ix) Kunhan v. Sankara (1891) 14 Mad., 78, 80; Thimmakke y.

Akkii (1911) 34 Mad., 481 (karnavan’s improper refusal to dispute

unjust alienations) ; Kunhanna Shetty v. Timmaju (1914) 27 M.L.J.,

60 (adverse claim to tarwad’s property and alienation of the same
— karnavan removed) ; Cheria Pange Achan v. Unnal Achan (1917)
32 M,L.J., 323 (violation of terms of karar — ^removed).

Removal of
karnavan.

984

MARUMAKKATTAYAM

Rights of

junior

members.

16. Neither leprosy nor blindness is a disqualification to
be a karnavan; but if the blindness or the leprosy is shown to
have led to gross incompetency, he may be removed. A minor
or lunatic can never hold the office of karnavan till the
minority ceases or the lunacy is cured (y). The rules of
disqualification from inheritance recognised by Hindu law
have no application to the Marumakkattayam or the Aliya-
santana law fz).

17. A junior member of a Marumakkattayam or
an Aliyasantana tarwad is a co-owner or co-proprietor
of the family properties with the other members
thereof. He is entitled (1) to be maintained by the
karnavan, (2) to object to unauthorised alienations of
the tarwad property, (3) to become the karnavan on becoming
the seniormost male member of the family; (4) to a share
on a paitition; and (5) to object to an adoption fa). Of
these rights, the most important are the right to maintenance
and the right to resist improper alienations. The right to
maintenance is the mode in which a junior member enforces
his right of co-proprietorship in the tarwad pioperties f 5) .
Tt was at one time thought that the right of a member was
only to be maintained in the family house and that he had no
light to maintenance if he resided elsewhere. It is now
settled that if the residence outside the family house is for
a justifying cause, the junior member is entitled to separate
maintenance (c) , Under Section 35 of the Maiumakkattayam

(r) Govindan Nair v Narayanan Nair (1912) 23 M.L J , 706. In
removing a karnavan the Court can make a declaration regarding the
persons n^x^ in order of seniority who are unfit to succeed; (1920)
43 Mad., 319 supra, when a karnavan is removed the Court can make
provision for his future maintenance

(z) Chandu v. Suhba (1890) 13 Mad, 209 (leprosy), Sanku v.
Puttamma (1891> 14 Mad, 289 (insanity).

(а) Scshappa Shetty v Devaraja Shelly (1926) 49 Mad, 407;
Kiinnigaralu v Arrangaden (1864) 2 M.H C.R., 12, Moidin Kutti v.
Krishnan (1887) 10 Mad, 322, Chandu v Subha (1890) 13 Mad,
209, Ibrayan Kunhi v KomamaiU Koya (1892) 15 Mad., 501.

(б) (1926) 49 Mad., 407 supra, Maradevi v. Pammakka (1913)
36 Mad., 203, Muthu Awma v Gopalan (1913) 36 Mad, 593, Ammani
4mma v Padmanabha Menon (1918) 41 Mad, 1075

(r) (1913) 36 Mad. 203 supra, (1913) 36 Mad, 593 supra,
(1918) 41 Mad., 1075 supra, Chekkulti v Pakki (1889) 12 Mad., ,305.
The following have been held to be good caut^es, a married lady
leaving tarwad house for living with her husband, Kunhiknshnan v
Kunhikavamma (1918) 35 M.L.J., 565; a male member living outside
with his wife and children, Govindan Nair v. Kiinju Nair (1919) 42
Mad., 686 supra; a junior member living outside pursuing any pro-
fession, trade or calling, Ammalukutti v, Ramunni Menon (1934) 67
M.L.J., 470; insufficient accommodation in the family house, Kunchi
V Ammu (1913) 36 Mad., 591; Kunhalikutti v. Kjinha Mayan (1923)
46 Mad.. 567.

AND AUYASANTANA LAW.

985

Act, every member of a tarwad, whether living in the tarwad
house or not, is entitled' to maintenance, consistent with
the income and the circumstances of the tarwad.

The possession of separate funds by a junior member is
by itself no impediment to claim maintenance froAi the
tarwad when the family income is sufiicient to provide a
suitable subsistence to all the •members of the tarwad (d) .
Where, however, the tarwad income is not sufficient, the
possession of private income by a junior member can be taken
into consideration in awarding a lesser maintenance to
him (e). A member of a tavazhi is entitled to maintenance
both from the tarwad and from the tavazhi properties (/).

The term ‘maintenance’ includes not only the bare neces-
saries of life but also what is usually called in Malayalam
the *menchilavu\ The term ‘maintenance’ has been held to
include the reasonable and legitimate expenses of junior
members, such as expenses of the medical treatment, marri-
ages, pilgrimages, defence in criminal cases, etc. (g).

In determining the quantum of maintenance, the rule of
law is that the junioi membeis should be allowed for their
maintenance what is reasonable and proper, having regard
to their needs and having regard to the position, affluence and
status of the family. What is reasonable and proper will
depend on the circumstances of each case and the decision
of the karnavan in such a matter would not be lightly inter-
fered with by the Courts (A) . Allotments for maintenance made
from time to time by the karnavan are however liable to
revision when there is a material change of circumstances (0>
but where land is given in lieu of maintenance to the junior

ir

(d) Ammalu Kutti v Ramunni Menon (1934) 67 M.L.J., 470;’
Nahu Amma v. Raghava Menon (1915) 38 Mad., 79,

(e) Karnavan v. Govindan A.I.R. 1933 Mad , 265.

(/) Naku Amma v. Raghava Menon (1915) 38 Mad., 79.

(g) Govindan Nair v. Kunjan Nair (1919) 42 Mad., 686; Parvati
V Kumaran (1883) 6 Mad., 341; (1934) 67 M.L.J., 470 supra; Valia
Konekkal v. Lakshmi Nettyar 0913) 1 M.W.N,, 379; Devaraja v.
Seshappa (1926) 49 Mad., 407; but see Ravanni Achan v. Thankunni
(1919) 42 Mad., 789. In questions of maitenance the practice of the
Courts is to treat, as a matter of convenience, two minors as equal
to an adult but this is not a rule of law, (1934) 67 M.L.J., 470 supra.

(/rl Kunhali Kutti Haji v. Kunhamayam (1923) 46 Mad., 567.

(i) (1919) 46 Mad., 567 supra; Thayu v. Shunkunni (1882) 5
Mad. 71: Sara Umma v. Kunhammad A.I.R. 1926 Mad., 810, 23
M.UW., 584.

986

marumakkattayam

members of the tarwad, it cannot be set aside by the karnavan
unless some other suitable arrangement is made (y) .

As regards the rate of maintenance, a junior member is
not entitled to claim an aliquot share of the net income of the
tarwad (A;).

Neither mere delay in claiming maintenance nor omission
to demand it will constitute a waivei or an abandon-
ment (/). Where the karnavan is shown to have
misappiopiiated the taiwad income, he can be made person-
ally liable for ariears of maintenance {rn) ; but ordinarily a
decree foi maintenance will be only against the tarwad pio-
perties and the income thereof in the hands of the karnavan
and special circumstances are necessary to justify a personal
decree against the karnavan (//)

18 A junior member may sue for a declaiation that
an alienation by the karnavan is not binding on the tarwad
or its properties on the ground that it was improper or was not
justified by legal necessity (o) A junior member is entitled
to bring a suit on behalf of the taiwad to protect its interests
when there has been an infringement of the rights of the
tarwad or when the karnavan is disabled by his own
conduct or otherwise from suing or is acquiescing in it (p).

(/) Ramaswami Pattai v Gopalan (1917) 32 MLJ, 97, Kun-
hammad v. Sara Umma (1925) 49 MLJ, 121 (reversed on another
point in A.I R 1926 Mad , 810) , Krishna Kurup Razhukkath Pokki
A.IR 1936 Mad. 598.

(k) Kunigaratu v. Arangaden (1864) 2 M H.C R., 12; Thayu v.
Shunguni (1882) 5 Mad., 71, Maiyan Kutti v. Kadiri A.IR. 1925
Mad., 441; Sndevt Nethiar v Peruvunni Nayar (1934) 67 M.L J., 771,
778.

(/) Ammalukutti v. Ramunni Menon (1934) 67 M.L.J., 470.

(m) (1934) 67 M L.J., 470 supra y Vasiidevan v Govindan (1932)

MW.N., 1203 ^

(n) Kunhalikutti Haji v Kunha Mayan (1923) 46 Mad, 567,
Chandu v Raman (1888) 11 Mad , 378 (maintenance regarded
cliarge on tarwad property); Govindan v Kunnappu (1936) 71 M.L.J.,
514, (arrears assignable and transferable) Suits for maintenance are
governed by articles 127 and 132 of the Limitation Act, Narayana v.
Thirumampu Valia Govinduy AIR 1936 Mad, 573, 43 M.L.W. 711.

(o) Unm v Kunrhicmma (1891) 14 Mad., 26, Chappan v Raru
(1914) 37 Mad, 420, Padamma v Themana Amma (1894) 17 Mad,
232, Kunhi Pokker v. Malihaimal (1919) 37 M.L.J., 544.

ip) Raja of Arakal v. Ghana Kunhi Kannan (1915) 29 M.L.J.,
632; Kanna Pamkker v Nanjan (1924) 46 MLJ., 340, Kunhikutti v
Muhamed Haji (1931) 60 M L.J., 450, Rama Kurup v. Shekara Kurup
(1911) 21 M.L.J., 87; Chappan v. Raru (1914) 37 Mad., 420,
Abdulla Koya v. Echaran Nair (1917) 35 M.L.J , 405; Kizhakkumhrath
V Koyambrath (1927) 108 IC, 738; Ammalu Amma v. Narayana
Nair (1928) 51 Mad., 549; Kalliam Amma v. Sankaran Nair (19J9)
10 M.L.W., 220 (to file a suit or appeal when karnavan refuses).

AND ALIYASANTANA LAW.

0fl7

In the case of leases and other acts of ordinary manage-
ment, the junior member \s not entitled to impeach them in
the absence of fraud (p^).

19. In the matter of gifts, the question has often arisen Gifts,
whether a gift is made to a tavazhi as such or whether
the donees take as tenants-in-common. The ordinary
presumption is that when properties are given by way of gift
to a woman and her children, or her children alone following
the Marumakkattayam or Aliyasantana law, the property is
taken by the donees with the incidents of tarwad property (q).

Some only of the members of a tavazhi cannot hold the pro-
perty with the incidents of tarwad property ; hence when a gift
is made to them, they will take it as tenants-in-common unless
there are circumstances to justify the inference that they took
it on behalf of the entire tavazhi (7). When property is given
to the mother alone, when there are childien, the presumption
that she takes it on behalf of the tavazhi is rebutted. Now
section 48 of the Marumakkattayam Act provides that “where
a person bequeaths or makes a gift of any property to, or
purchases any property in the name of, his wife alone or his
wife and one or more of his children by such wife together,
such property shall, unless a contrary intention appears from
the will or deed of gift or purchase or from the conduct of
the parties, be taken as tavazhi property by the wife, her
sons and daughters by such person and the lineal descend-
ants of such daughteis in the female line; provided that in
the event of partition of the property taking place under
Chapter VI, the property shall be divided on the stirpital
principle, the wife being entitled to a share equal to that of
a son or daughter^’.

20. The ordinary presumption is that property acquired by
a karnavan, while in management, is tarwad property. But
this presumption may be rebutted by showing that the family
had not an adequate nucleus or that the acquisition was made
with the karnavan’s own funds, or possibly even by showing
that the karnavan had funds which were adequate for the
purpose ( 5 ). A similar presumption applies when a junior

Acquisitions
by karnavan.

(pi) 60 M.L.J., 450, 108 I.C., 738.

iq) Kunhacha Uma v. Kutti Mammi Hajee (1893) 16 Mad., 201
F.B,; Chakkra Kannan v. Kunhi Pokker (1916) 39 Mad., 317 F.B.;
Adam Haji v. P, Kunkan A.I.R. 1938 Mad., 242, 46 M.L.W. 772.

(r) Moithiyan Kutty v. Ayissa (1928) 51 Mad., 574.

( 5 ) Kunhanna v. Timmaju (1914) 27 M.L.J., 60; Chathu Nambiar
V Sekhaian Nambiar (1924) 47 M.L.J., 695; Chathu Nair v. Sekaran
Nair (1910) 33 Mad., 250; Ahmad v. Manha Mammad AJJl 1926
Mad., 643, 23 M.L.W., 575; Govinda Panikker v. Nam (1930) 36
Mad.. 304.

983

MARUMAKKATTAYAM

Stanora.

member is in possession of the tar wad funds (0 . But there
can be no presumption in favour of the tarwad when a junior
member, who is not in possession of its funds, makes an
acquisition (w). When a junior member has no property
of his own but is in management of the tavazhi funds, the
proper presumption will be that his acquisitions came
out of the tavazhi funds (v). But where one and the
same peison is the karnavan' of a tarwad as well as of a
tavazhi and has in his hands the funds belonging to both the
entities, no piesumption can be made in favoui of eithei
the taiwad oi the tavazhi; in such a case the decision
will have to depend upon the source of the acquisition.
Wheie the karnavan or the managei mixes his piivate funds
with the tarwad funds, the doctiine of blending applicable
to a joint Hindu family would be applicable.

21. Some of the aristocratic Hindu families in the West
Coast have attached to theii families an ofiBce called *Stanom\
meaning literally station, rank, oi dignity. The holder of a
stanom is called a Siam, The incidents of the institution are
now well settled. Usually the seniormost membei of the
family male or female attains the stanom, and there can be
more than one stanom in the same family (tc) . Separate
properties apportion to each stanom and they vest in the
holder of the office for the time being and descend to the
successors in office. One important feature is that when a
person attains a stanom, he ceases to have any interest in the
property of his tarwad, and the members of his tarwad
have in their turn only reversionaiy rights to the stanom pro-
perties (;c).

V

{t) Iswaran'y, Vishnu (1931) 60 MLJ, 467

{u) Subramania Pattar v Krishna Embranderi (1920) 39 M.L.J ,
590; Dharnu Shetti v. Dejemma (1916) 5 M L W., 259.

(v) Chathu Nair v Sekaran Nair (1910) 33 Mad, 250, As to a
case where a karnavan has large private acquisitions, see S.A., 435 of
1926.

iw) In the Zamonn’s family there are five stanoms, so too, in
many aristocratic families, there is more than one stanom.

ix) As regards the nature of the incidents of stanom, see Chattan
Raja V. Rama Varma (1915) 28 MLT, 669; Gavuredevamma Garu v
Raman Dara Garu (1870) 6 M.H C.R., 105; Munpil Nair v. Ukona
Menon (1876) 1 Mad., 88; Veera Royan v. Valia Rani (1881) 3 Mad.,
141; V enkateswara lyan v. Shekhari Varma (1881) 3 Mad, 384 P.C.;
Manavikraman v. Sundaram Pattar (1882) 4 Mad., 148. The dictum,
“A stani 18 a corporation sole” is open to criticism; Vidyapurna v.
Vidya Nidhi (1904) 27 Mad. 435.

AND ALIYASANTANA LAW.

Though the estate taken by a stani is a limited one, it is not
a mere life estate. He id absolutely entitled to the income
accruing during his tenure of office. He can also encumber or
alienate the stanom properties for legal necessity just like
any other limited owner. The acquisitions made by a stani
devolve not on his successor in office but on his personal
heirs. But it is open to the stani to incorporate his immov-
able acquisitions with the stanom property so as to subject
them to all the incidents of stanom property. When a stanom
ceases to exist by the extinction of the tarwad, the members
of which were entitled to succeed to the office, the property
passes by escheat to the Crown, and the last holder’s personal
heirs cannot take the property by inheritance. The Madras
Marumakkattayam Act does not apply to stanoms.

INDEX

Ref^ences are to pages.

ABEYANCE,

succes^^ion never remains in, 597, 702, 730-731.

ACCOUNT,

coparcener’s right to account, 384-385,

karta’s liability, 381-382,

mode of taking accounts, 527-530,

• when account ordered, 529-530,

widow not liable to account for income, 765, 768.

ACCUMULATIONS,

directions for
in gifts, 899.
in wills, 899, 900,

limited holders interest in, 771-776.

ACCRETIONS,

ancestral piopeity, to, 355,
husband’s estate, to, 772-776,
intention, the test of accretion, 774,
impartible estate, to, 852-854.

ACKNOWLEDGMENT,

by father, 421,
by guardian, 308,
by manager, 403,
by widow, 783.

ACTS,

Abolition of Slavery Act (V of 1843), 647n,

Adoption of Children Act, 1926 (16 & 17 Geo. 5, c. 29), 115n,

Ary a Marriage Validation Act (XIX of 1937), 82,

Bengal, Agra and Assam Civil Courts Act (XII of 1887), 18n,

Bengal Court of Wards Act, (IX of 1879), 207n,

Bengal Court of Waids Act (III of 1881), 302n,

Bengal Court of Wards Act (I of 1906), 302n,

Bengal Land Revenue Sales Act (XI of 1859), 954n,

Bombay Court of Wards Act (I of 1905), 302n,

Bombay Enam Lands Act (II of 1863), 207n, 947,

Bombay Hereditary Offices Act (II of 1874), 845n,

Bombay Hindu Heirs’ Relief Act (VII of 1866), 4I7n,

Burma Courts Act (XVII of 1875), 67n,

Caste Disabilities Removal Act (XXI of 1850), 79, 80, 81, 203, 302,
551, 728,

Cattle Trespass Act (I of 1871), 415,

Central Provinces Laws Act (XX of 1875), 18n, 67n,

INDEX.

992

ACTS — continued.

Charitable and Religious Trusts Act (XIV of 1920), 915, 947,
Charitable Endowments Act (VI of 1890), 914.

Child Marriage Restraint Act (XIX of 1929), 150, 174, 476n,

Civil Procedure Code (V of 1908), 189, 313, 386n, 403, 422, 423n, 433,
434-437, 440, 441n, 443-446, 571n, 574, 807, 814, 914, 946, 947, 948,
954, 979,

Contract Act (IX of 1872), 72n, 142, 212n, 305, 393, 404, 421, 422n,
488, 955,

Criminal Procedure Code (V of 1898), 822n,

Crown Grants Act (XV of 1895), 845,

Cutchi Memons Act (X of 1938), 101,

Cutchi Memons Act (XLVI of 1920), 101,

Divorce Act (IV of 1869), 81,

Evidence Act (I of 1872), 117, 288, 289, 315,

Government of India Act, 1919 (9 & 10, Geo. 5, c. 101), 18,
Government of India Act, 1935 (25 & 26, Geo. 5, c. 42), 18, 85,
Guardians and Wards Act (VIII of 1890), 149, 298, 299, 300n, 301,
302, 303, 309,

Hindu Disposition of Property Act (XV of 1916), 82, 864, 869, 888,
Hindu Gams of Learning Act (XXX of 1930), 82, 83, 370,

Hindu Inheritance (Removal of Disabilities) Act (XII of 1928), 62n,
82, 83, 84, 203, 551, 552, 553, 598, 703, 722, 725, 732n, 940,
Hindu Law of Inheritance (Amendment) Act (II of 1929), 62n, 84,
224n, 258, 614, 621, 626, 679, 681, 682, 697,

Hindu Transfers and Bequests Act (Madras Act I of 1914), 82, 724n,
864, 869. 887, 888,

Hindu Transfers and Bequests (City of Madras) Act (VIII of 1921),
82, 864, 869, 888,

Hindu Widows’ Remarriage Act (XV of 1856). 80, 114, 137n. 140,
171n, 174, 185n, 188, 207, 655, 656, 657, 722, 832,

Hindu Wills Act (XXI of 1870), 879, 880. 887, 896,

Hindu Women’s Rights to Properly Act (XVIII of 1937), 84, 85, 219n,
239, 260n, 265-269, 270n, 272, 300n, 339, 340, 348, 354, 378, 531,
542, 543, 546, 595n, 614, 616, 627n, 643, 650, 651, 653, 655, 657,
703, 704, 714-723, 727, 741n, 765, 768, 805, 828, 885,

Hindu Women's Rights to Property (Amendment) Act (XI of 1938),
714,

India and Burma (Existing Laws) Act (I Ed. 8 & 1 Geo. 6, t. 9), 85,
Indian Councils Act (24 & 25 Vict., c. 67), 888,

Indian High Courts Act (24 & 25, Vict., c. 104), 888,

Insolvency Act (11 & 12 Vict., c. 21). 456,

Jaina Succession Act (III of 1929), 89,

Limitation Act (XIV of 1859), 811,

Limitation Act (IX of 1871), 290, 809, 811
Limitation Act (XV of 1877), 809, 811,

Limitation Act (IX of 1908), 290, 291, 308, 403, 420, 121, 449n, 508,
509, 518, 783, 812, 817, 818, 933-935, 937n,

Lunacy Act (XXXV of 1858), 206n, 308n,

Madras Civil Courts Act (III of 1873), 18, 67,

Madras Court of Wards Act (I of 1902), 18, 207, 302n,

Madras Endowments and Escheats Regulation (VII of 1817), 947,
Madras Hereditary Village Offices Act (III of 1895), 845n,

Madras Hindu Religious Endowments Act (II of 1927), 918n, 947, 948.
Madras Impartible Estates Act (II of 1904), 273n, 418, 846, 851, 852,
862,

Madras Maruniakkattayam Act (XXII of 1933), 92, 185, 968, 970*973,
975, 982-984, 987, 989,

INDKX.

993

ACTS — cotUinued.

Madras Nambudii* Act (XXI ol 1933), 91, 92, 185,

Madras Partition-deeds (Validalion) Act (II of 1884), 556ii,

Madras Revenue Recovery Act (II of 1864), 954n,

Madras Suppression of Immoral Traffic Act (V of 1930), 74n,

Majority Act (IX of 1875), 150, 205, 297,

Malabar Marriage Act (IV of 1896), 968, 974, 975,

Malabar Wills Act (V of 1898), 968, 973,

Mappila Succession Aet (1 of 1918), 92,

Muslim Personal Law (Shariat) Application Act (XXVI of 1937), 87,
92, 99n, 101,

Negotiable Instiumeiits Act (XXVT of 1881), 451, 453,

Oudli Estates Act (I of 1869), 362, 371n, 858,

Oudli Land Revenue Act (XVII of 1876), 67,

Oudli Laws Act (XVIII of 1876), 18, 67, 71,

Partition Act (IV of 1893), 575,

Partnership Act (IX of 1932), 391, 392n, 393, 414,

Penal Code (XLV of 1860), 102n, 206n, 304,

Pensions Act (XXIII of 1871), 846n,

Presidency-Towiis Insolvency Act (III of 1909), 421, 453-450,

Probate and Administration Act (V ol 1881), 879,

Provincial Insolvency Act (V of 1920), 453-456,

Punjab Court of Wards Act (II of 1903), 302n,

Punjab Land Revenue Act (XXXIII of 1871), 67,

Punjab Laws Act (IV of 1872), 18, 71n,

Punjab Laws (Amendment) Act (XII of 1878), 67,

Registration Act (XVI of 1908), 213n, 521, 555,

Religious Endowments Act (XX of 1863), 947,

Special Maiiiage Act (III of 1872), 80-82, 89n, 90, 170, 179, 184, 202,
566, 689,

Spccihc Relief Act (I of 1877), 290, 505. 815, 817,

Suctession Act (X of 1865), 81, 103, 213. 879, 887, 888, 889, 895,
Succession Act (XXIX of 1925), 103. 297n, 689, 769n, 879, 880-882,
886. 887, 889, 890 892. 895-900, 902, 903, 905, 906, 909, 911, 912,
Successjon Ccilih(ale At I (VII of 1889), 879,

Tiansfci of Ihojieitv Act (IV of 1882), 18n, 82, 390, 438n, 444n, 472,
490, 497, 501, 521, 530n, 555, 556n, 790, 820, 837, 839, 840, 864,
865-874, 889, 892, 900, 905, 9l5, 922, *956,

Tiansfci of Piopcity ( Amendmeiil) Act (XX of 1929), 839, 86^
Tianslei ol Piojierly (AnuMidment ) Suppleincmlaiy Act (XXI of 1929),
82, 438n, 444n, 504, 52In, 555, 864873, 889,

Trusts Act (II of 1882), 874, 875, 922, 952, 954n, 955,

United Provinces Couit of Wards Act (IV of 1912), 267, 302n,

Usurious Loans Act (X ol 1918), 488.

ADOPTION,

adoption in eaily times, 192-196,

comparative impoitance of adopted son, 195,
different soits of adopted sons, 115,
reasons for dattaka’s prominence, 195-196,
putrikaputra, diminishing imiiortancc of, 195-196,
texts, 200-201,

adoption of adopted son, 244,
agreement to atlopt, breach of, 286,
not to adopt, 212,

alienations anterior to adoption, 277-280,
by adoptive father, 279,
by adoptive mother, 277*278,

65

994

INDEX.

ADOPTION — continued

alienations anterior to adoption

by previous male liokb-r, 278-279,
ante-adoption aoieenunt-' 27.1-277,
with adult adopted son, 276
with natuial fathei, 271,
ceiemonies of ado])tion 2.51-256

dattahomani in what lascs necessaiv, 252-251,
consideration foi giviiii* in adoption. 283
custom against adoption 212-213
estoppel, efTi^et of, 289-290,

personal against widow, 289,
evidence of, 287-288,
execution of documents insufli( lent, 252
^factum valct^, applnation ot tin doitiine ol 255-256
gift and acteptaiice,

( ssential in all ( a^(‘-. 251 252
in iiollution. 208,

physical act can Ik* dcdegati'd 241 252
invalid ado])tion

effect of. in the ad(>pli\t‘ fainilv 281 285
in tli<‘ tiahiial lamiK 281 285
gift Ol heiiuest to jnison in\alidlv adopti d 285 286
whethei bars sim oiid ado|)tion 228 229
limitation,

suit ioi a declaiatioii against the lailinn oi validity ol adojilioii 291
suit foi a declaration that adoption valid 291
suit for leioveiy of poss(‘ssion hv Kvtusionei 29t) 291
oildian adofition ol invalid 212
except by custom 212
persona designata gilt to 285 286 905
res judicata, 288
results of adoption

commencemeni oi ii'^his ol adopt(‘d ^on, 277
complete seveiaiue liom natuial faimiv 262-265
tomph'te snb^tituti* foi aiiiasa son in adojitive family, 256 257
e\cei)tions 257

divesting M,! e»’tali ahi adv vested in adopted son, 26.5 265
diverting of estate vi^-hd in the adopting inothei 266
aftei the KM (lit Act, 266 272
heloie tin icMcnt Act. 265, 266
divesting of estate vc'^tid in a (ojiaKiiui 267 268,
diverting (d (‘state vested in inferioi litoi 269-272
divesting ol (‘"-late vvdien adofitioii is mad(‘ to a ovviur other than
the last male holder, 266, 267 272
guardianship <d adofited son, .502

mariiage oi ado|)tion in natural family piohihitecl 26.5
renunciation bv adoptiMl son, 276, 277,
specific iierfornidiKe of agieemeiU to adopt 286, 287,
succession of adopted son,
collaterally, 257.
cx partc^ mateina, 257

when adoption is made by widower. 258, 259,
lineally, 257,

succession of adoptive mother, 258,

of one of several wives associated by husliand, 259, ‘^60
who may adopt, 202-239,
bachelor, 202, 259,

INDEX.

OOS

ADOPTION — continued,

who may adopt — continued,

dancing girls, 73, 74, 292, 293,
disqualihed heir, 204-205,
lunatic, 206,
minor, 205, 206,

minor under Court of Wards, 206, 207,
person with disqualified son, 203, 204,
person with no njale issue, 202,

person whose only son has married under the Special Marriage
Act, 202,

person who is under pollution, 208,
person whose wife is jiregnant, 202,
remarried woman, 207,
unchaste woman, 207,
widow,

assent of husband requiied in Bengal and Benares, 208, 209,
assent of kinsmen in South India and Punjab, 209, 210,
where husband is joint, 219,

wheie husband is a separated member, 219, 220,
assent, when coirupt, eff(‘(t of, 226-227,
assent of deceas(‘d sapiniia, 225,
assent of sapiuda, whether levocable, 226.
ass(»nt of son to an adoption by his mother. 225,
assent of sapinda, when dependent on husband’s authority, 226,
assent of cognates, 223, 224,
assent of mother-in-law, 223,
authoiity to adojit,
conditional, 214.
express, 213,
general, 215. 216.
implied, 213,
lestiieted, 215,

to make successive adoptions, 215,
to make simultaneous adoptions, 202, 214-215,
to one of ''CNeral widows, 217.
to several widows. 217,
stiict piiisuame necessaiy, 214-217,
widow alone can be authorised, 210-212,
authority incflectual till acted upon, 211,
discretion of widow absolute, 211,
form of authoiity to adopt, 213.
improper refusal of sapinda, 221-223,
motives of widow in making adoption, 229-231,
jiower of widow in Western India greater, 227-228,
prohibition by husband. 228,
termination of powei to adopt, 232-239,
widower, 202,

whethei predeceased wife is ilie mother of the adopted boy,
258-259,

wife.

assent of wife unncHM'ssary to adoption by husband, 208,
cannot adojit except with husband’s consent, 208,
who may give in adoption,
brother cannot, 240,
parents only can, 239-240,

convert father may give in adoption, 241,
mother, when competent to give in adoption, 240,

996.

INDEX.

ADOPTION — continued.

physical act of gift may be delegatciL 241,
power to give in adoption cannot be delegated, 241,
reman led widow cannot give m adoption liei bon by the first
husband, 241,

sl('p-mother cannot give in adoption, 240,
wife’s assent unnecessary to husband’s gift of son, 240,
who may be taken in adoption,
adojited son, 244,

adotition of same boy by two i>cisons invalid, 244,
ag<‘ of son to be adopted, limitations as to, 249-251,
caste, identity of, 242,
daimhtc t’s soil, 245,

dis((ualifie(l pel son, wliethei cdigible, 211,

distant sa})inda, 241,

eldest son, 245,

inothc'i’s sister’s son 215,

only son, 245,

oilihan, whether eligible, 212,

ix'ison whose motlmi in hei maiden state the adopter might have
man led, 244-249,
sister’s son, 245,
strangei, 242,
woiks on adoption, 56-57.

ADVERSE P(3SSESSI()N,

of debutti'r lands. 954-955,

pro])eity accpiin'd advciscly b> liiniltd ownei, whelhei stiidhana,
716, 811,

icligious office, whetlun accpuicd liy 955,
widow, against, 811,
by, 811,

A^TERB()R^ S()[\,

adopted son siucession m conipc'tilion with 200-262,
aliciiiation light to object to, 461, 509, 51 k
disciuahhed heir of, rights of 711,
divest, cannot, estate already vc‘sted, 750-752,
lights of aft^^iborn son on paitilion, 555

See AdoimkiN; Minoii
A(;^'ATKS See Succi.ssioN.

ALIENATION,

cdoplc'd son’s light to ol)jc'c.t to, 279, 515,
after-boin c oparcc nei's right to ob)cci to, 161 509 515,
agieemeiit against, 520,

conditions lesiidining, in gilts and bcMjiiesls, 871,

Lopaicener, by,

alienation of coparcnmaiy pioiieily, 465-469,
alienation of his undivided share 490-495
how far recognised in Bengal, 462, 492,

Bombay, 491,

Madras, 491,
othcT i)rovinc(‘s, 495.
alitnalioii, setting aside of,

conipcnsation foi iinpioveiiicnls on, 518, 519,

equities on, 515-510,

limitation for, 508-509,

mesiie profits on, 517,

offer to refund, not necessary, 516,

INDEX.

097

A LIENATION — continued.

coparcener, hyr-^continued,

auction purchaser, rights of, 499,
extent of share of alienee, how ascertained, 505,
gift or devise of share invalid, 494-495,
valid after severance, 496,
mortgagee from coparcener, rights of, 505,
purchaser from coparcener, rights of, see Pituchaser,
renunciation, effett of, 496-497, 565-6,
status of coparcener unaffected by alienation, 501,
father, by,

absolute power in Dayahhaga, 334, 461,

ancestral movables, of, under Mitaksliara law, 332, 463-465,

antecedent debts, for payment of, 426-429, 431, 465,

avyavaharika debt, for payment of, 407,

debts not due and payable, for payment of, 428-429,

gifts through affection, 464, 483,

limitation for setting aside, 508, 509,

partition, after, 438,

restricted by rights of Ksiie, 331, 466,

self-acquired land, of, 333, 459-460,

time barred debts, for payment of, 428,

See Dfbts
guardian, by,

benefit of esialo, foi, 307,
what is, 307,

equities on setting aside, 312,
guardian de facto, by, 309-310,
karnavan, 980-983,
niahant, by, 933,

burden of pi oof, 937.
creditor’s remedi(*s. 937-938.
limitation for setting aside, 933-937.
manager, by,

benefit of estate, meaning of, 473-175,
illustrations of benefit, 480 481,
burden of proof,

interest, late of, onus as to, 487-488,
lapse of time, effect of, 486,
lies on alienee to piove necessity, 484,
or bona fide enquny, 47 1, 472, 481.
presumptions in such cases 484,
proof of payment, 487,
recitals, value of, 485,

consent of coparceners, with, 468, 509-513,
family business, for, 399-400,
family necessity, for, 469-472,
family purposes, for, 467,
indispensable duties, for, 482-483,
legal necessity, what is, 475-478,
partial necessity, 479,
separate property, alienation of, 459-460,
shebait, manager, or dharmakarlha, by,
benefit of estate, 930,
indemnity, right to, 931,
leases, 9^,

limitation for setting aside, 933-937,

998 .

INDEX.

ALIENATION — continued,

shebait, manager or dharmakarta. by,- continued.
necessity, for justifying, 929,
office, of, 942, 944,
widow, by,

benefit of estate, wbat is. 788,

consent of reversioners, with, see Co^sI nt, Reversioners,
creditor need not see to application ot purchase money, 790,
discretion to sell or mortgage, 788,

entire estate with consent of reversioneis, of, 798, 801,
eipiities on setting aside, 813,

female heir, by foi payment of previous owner's debts, 783,

gift with consent of reversioner, 794,

government levenue, for payment of, 787,

husband's debts, for payment of. 782

invalid alienation good for life, 786,

lease, 789n,

liability of husband's estate for wkIow's debts, 791 792

limitation period foi suit to set aside. 817 818,

litigation expenses, for payment of, 787

maintenance and mairiagi expenses <d d(‘pendants, 784,

maintenance, for her own, 784,

money debts liabilit\ of estate foi 792.

movables, of, 773,

necessity, for. 785.

necessity, instances of, 787.

onus of proof, 789, 797,

partial necessity, for, 819.

pilgrimages, for expenses of 781

prior alienations, surrender as afTecting, 801

rate of interest, 789,

recitals, value of, 790

religious oi charitable pui poses foi 779-783
reversioners, remedies of, see Rem rsiotni rs
sraddhas. for performance of, 780.
trade debts, for payment of. 793,

AL^YASANTANA ^ee Marumakkattayam Law
ANCESTRAL BUSINESS See Joint Family Business
ANCESTRAL PROPERTY,

accretions to ancestral property, 355
acquisitions aided by joint funds, 373,
bequest or gift by father, 464, 483,

bride-price m Asura marriage or payment to natural parents of
adopted son, whether ancestral. 376,
characteristics,

IS unobstructed property, 346-348, 353,
obstructed heritage, not ancestral, 353, 354,
father’s power under Dayabhaga, 377. 461,
father’s power under Mitakshara, 466,
father’s power to alienate for his debt, 465
father’s power over ancestral movables, 463,
income from impartible estate not ancestral, 364,
inherited property not ancestral, 353,
joint acquisitions, 359-361,

INDEX.

999

ANCESTRAL PROPERTY— co«/t/mpr/.

nature of property given oi bequeathed to son, 356-359,
property lost and recovereil, 372. 373,
property obtained on partition, 355, 356.

piopeity reverting on death of widow who succeeds under recent Act,
nature of, 354, 718,

property thrown into common stock 361*361

ANGIRASA,

a Smriti writer, 33,

on the authority of the Code of Mann, 26.

ANITYA,

form of dwyamiishyayana adoption, 280,

ANTECEDENT DEBTS, 126-1 U See D?

ANULOMA MARRIAGE. ITB-IBL

invalid in the absence ol custom. 178-179,

ANVADHEYA,

devolution of, 755, 758 760 763,
gift subsequent is, 736, 738

APARARKA,

age and authority, 47, 48n,

his commentarv on Yainavalkya Smriti, 48,

on the succession of bi other’s descendants, 668.

APASTAMBA,

age of, 23,

does not lecognisc paitilion b(*!vveen husband and wife, 543,

subsidiaiy sons, 23,

opposed to adofition, 23,

APAVIDDHA,

obsolete, 125,

subsidiary sons one of the. 111, 112

APPOINTED DAUGHTER,

now obsolete, 125,

except among Nainbudris, 125,
position of her son, 113,
remained undei dominion of father, 113,

APRATIBANDHA DAYA,

IS unobstructed inheiitance, 346, 347,

ARSHA,

a form of marriage, 139,

ARTHASASTRA,

author, Kautilya, 10,

date of, 1 1,

law in the, 11-13,

of no authoiity in modern Hindu law, 11.

ARYANS,

Dravidians, fusion with, 6,

Dvija and Arya, convertible terms, 6n,

See ^»^oPTioN, Polyandry

ARYA SAMAJISTS,

governed by Hindu law, 89.

marriages among, validated by the Arya Marriage Validation Act, 82.

1000

INDEX.

ASAHAYA,

commentator on Narada Smriti, 31.

ASSAM,

governed l)y Hindu law, 91*

ASURA,

elements of, 138-140,
form of marriage, 127,
whethei it is valid, 112 111
See Marhiagf

ATMABANDHUS, 007, 637
ATRI,

a Smiiti writer. 32>

ATTACHMENT,

after death of coparcener, has no effect, 41-5,
hefoK^ jiidgiiKMit » ff(‘< l of, 446,
prevents sm vivoi ^hip, 436 IH,
undivided coparcenary int<ies( of, 111

ATIRASA,

or legitimate son 112-113

AYAUTAKA,

definition of, 739,
succession to, 758, 762

BACHELOR,

adojition hv 202

BALAMBHATTA,

comnuiitaiy on tin* Mitakshaia, 47
on mutuality of sapiinlaship 16k 161. 611

BANDHLS,

atmahandhus, 607, 637,

hhinnagotra sapindas accoiding to Vi inanesvai a. 160 592,

classes exhaustive 636, 637,

compulation of 160,

enumeration only illustrative 629. 630,

father's line, 633-635.

limits of handhu relationship, 159-168 612 613
Sarvadhikari's vi(*w not ai ( (*pl<*d 618 613,

malruhandhuX 607, 637,
mother’s line, 635,

mutuality of handhu relationship 633,
order of succession among bandhiis. 672,

each class takes in the oidei ^pecifu'd 673,
jiropincfuity, the test within (vu h (lass, 673
rules of preference, 678-679,
female links, 678,
nearness of degree, 674.
nearness of line, 674-676,
preference rx parte paterna^ 678,
religious efficacy, 676-677
precedence among liandhus, 637,
pitrubandhiis, 607 637,

Satatapa’s text on 629
See Femaie BAM)mis, SiTrrtssioN, 2
BAUDHAYANA,

author of a Dharmasutra, 22-23
on exclusion of women from inheritance 611,
on maiden’s heirs, 752,
on sapindas and sakulyas, 586,

INDEX.

1001

BENAMT TRANSACTIONS,

advancement, no presumption of, O.'SO-Q.^l,
benamidar’s right to sue, 957-958,
burden of proof, 951-953,

source of purchd'^e money, the test, 951,
decree, effect of, 958,
principles of benami, 949,
real title, effect given to, 919, 95.3,

unless It amounts to fraud on creditors, 956,
fir on third paities, 9.55,

opposed to public policy, 955,
statute violated, 9.51,
effect of notice, 9.56,

resulting trust in lavour of leal owner, 919-9.50.

BENARES SCHOOL,

works of aiilhorily in, 48

BENGAT. SCTTOOT.. See D\Y\nTr\c\ SrnooT.

BETROTHAL,

damages for breach, whem allowed. 111.
only a contract, 114-146,
revocable, 1 15.

RHINNAGOTRA SAPINDAS. See Bandttus.

BLENDING, see A( ( Ri/noNs; Tttuowtng into Common Stock.

BLINDNESS,

whet her excludes fiom inliei ilanc e, 725,

fiom a sliaie on partition, 552

BOMBAY SCHOOL,

Mabaraslitra school, 63,

Older of siiecf'ssion, according to, 681-685,

(laughter, 660,
parents, 664,
stepmother, 665,
brothels and then sons, 666,
woiks of authority in, 51-53.

BORAHS,

governed in some matteis by Hindu law, 87, 100,

Muslim PcTsonal law (Shaiiat) Application Act, effect of, 101. •

BRAHMA,

approved form of maniage, 1.32-1.33
presumption m its favoui, 1.3.1-131.

BRAHMO SAMAJISTS,

governed by Hindu law, 89,

1002

INDEX.

BRIHASPATI,

age and characteristics, 31-32.
close correspondtMice with Mann Sinriti, 11,
distinguislu'd lietween civil and c iinimal iusIrc, 32,
on re-union 577,

sistei’s light, 621, 624,
widow's right, 614

BROTHER,

illegitimate' hiotheis succe'ed to each otlu'i, 690, 691.
speeial rule under Maynklia legaiiling '^n( ci'ssion ol 060
succession ol, 055-666,

succession to stndhana 751 75'i 761 762,
utuhvidt'd takc^ hefoie dividc'd 611

whole blood t'\( lud(‘s lialf lilood 599 605 010 611 665 702 856 857
BROTHER'S SO^ See Si c c Lss^(>^

BUDDHISTS,

governed h> Hindu law 89
Bl RDE^ OF PROOF See PuLstiMPiiox

henami ti ansjctions m 951-95)
custom of 76-79
dedication, ol, 925
(hv)amusln (nd/ia 281

immorahlv of debt ituuiK'd hv lathei ol 1)2
impartihihly of estates legaiding, 816 ,
nature of pio])(‘rtv. as to wdiethei |oint oi '-I'paiale*. 373-377,
necessity, ol

wheie alienation was ])y fathei 381,

hv guaidian f07
h\ mahant 937
hv managei 18 1
In wnlow 789 797
t(“^tamentai V cajiacitv of 881

CASTE,

adoption, identity of caste necessaiy in, 242

deprivation of c a^te relieved against hv Act XXI of 1850, 79 80, 728,
loss of, efUct of, on riglits ol the* outc aste 79
effect ol, on light of guai dian^liip 302
no deprivation of maintenance, 821,
of son, enables fathei to adopt, 201
marriage between persons of cliff<*rent castes, invalidity of, 107 175,

178-182,

vedic charactcTisties of, 107

CEREMONIES,

adoption, nc'cessary in 252-254

marriage, necessary in, 171-173,

the only ceremony for a Sudra, 249n,

religious ceremonies not necessaiy foi dedKalic)n, 922

CHANDESVARA,

author of Vivadaratnakara, 53,
on secondary sons, 118

CHARITY. See Religious Endowment: Woman’s Estate,

INDEX.

1003

CLASS,

gift or devise to a,, 870, 888, 890.

COGNATES. See Bandhus.

COLLATERALS,

daughteis of, heirs in Bombay, 623,

equal degree, of, take per capita, 597,

propel ty inherited from’ not ancestral, 353-354,

whole-bJood excludes half-blood among collaterals, 610.

COMMENTARIES AND DIGESTS,

as a source of law, 42-58,
adoption, treatises on, 56,

Halhed’s Code, 58,

Jagannatha’s Digest, 58,

Manu’s Code, on, 43,

• Schools, m diflerent,

Bengal, 54,

Mithila, 53,

Southern India 49-51.

Western India, 51-53,

Yajnavalkya Sniriti, on, 45-49.

COMPROMISE,

by father or guardian, 313-315,
manager, 402,

manager of temple, 938-939,
widoY% 805, 806

CONCUBINE,

right to maintenance of, 823-824,
who IS a, 647

CONJUGAL RIGHTS,

restitution of, 188-190.

CONSENT,

manager, alienation by, with consent of coparceners, 468, 509-513,
of sapmdas for adoption See Adoption. **

widow, alienation by, with consent of reversioners, 793,
consent of females, with. 795,
estoppel, operating as, 803-804,
evidence of consent, 795,
presumptive proof of necessity, 793,
purchased consent, 796,
quantum of consent necessaiy, 794,
subsequent consent, 796,
widow, gift by, with consent of leversioner, 794

CONTRACT,

by guardian, 310-311,
manager, 404,
minor, 305, 306.

1004

INDEX.

CONVERT,

to Christianity, law binding on, 102, 104,
to Muhammedanism, how far governed l)y Hindu law, 98-102.
CONVERSION,

Caste Disabilities Removal Act, effect of, 79, 80, 728,

does not relieve the descendants of the convert, 79,
copareenei’s conversion effects his severance, 551,
custody, riglit to, of niinoi, on conversion of paient, 303,
husband’s conversion does not affect wife’s right lo maintenance, 827,
marriage not dissolvt'd Iiy. 102,

minor, conversion of, guaidianship not affeclc'd by, 301-305.

COPARCENERS.

absent coparcenei’s right to parlition, 540,
after-born (‘otiarcimei’s light to partition, 533,
alienation by manager binding on co])arcencrs. See M\n\ger,
alienation of undivided share See Alien \'i ion
attachment of coparctmer’s interest, d14-446,
debts of coparcener, liability of share for, 413,
decrees against manager binding on all 386, 450, 151,
devolution of sbaie, 643-615, 719, 720,
disqualified coparcimei’s right to paitition, 550, 551, 552,
femal(‘s, whether can be coparceners, 318,
gift or dc‘vise of share by coparcener invalid, 494-195,
but valid after severance*, 196,
insolvencv of copaicener, 457, 458,
liability for manager’s dc*bls, 448-150,

maintenance of coparcene*! out of |oint family pioiieily, 383, 176,

minor c oparce'iier’s right to jiartition, 539-510,

purchaser of coparcener’s shaic*, lights of Si*e Aiii nation.

1 enunciation of share by, 196,
rights of a c'oparccner,

can demand accounts 381,
cannot claim specific share of income, 380,
exclusion from enjoyment, on, 389, 390,
has definc*d share under the Dayabbaga, 377,
lOiiit jiossession and en)o\ment, 379, 389-391,
inainte»iance, 381, 383, 476,
right to sue for partition, 531,
separate business of a coparcener, 375, 376,
separate jiioperty and self-acquisilions of a coparcenc'r, 364, 365,
suits by a single coparc(*ner, 387-389,
who are cojiarcc'iieis undc*r the Mitakshaia, 338, 345,

coparcenary a less extensive body than members of joint family, 311,
distance from common ancestor not the test, 343,
limited to three degrees, 345,
who are coparceners under the Dayabbaga, 377-378
See Alip NATION, foiNr Family, Joint Family BubiNrss, Joint Family
Property.

COPARCENARY PROPERTY. See Ancestral Property; Joint
Family Property.

COURT OF WARDS.

adoption by landholder under, 206,
minority of a ward under, 298.

CO-WIDOWS,

adoption by, 217, 218,
abimation by one co-widow, 653-654,

INDEX.

loos

CO-WIDOWS — continued,

enjoyment, arrangement for, 653,
inherit jointly, 652, 705,

inherit a son’s share under Act XVlll of 1937, 714,
limited estate, take only a, 652, 653,
senior inherits impartible property, 652,
manages on behalf of all, 652.

CREDITOR,

benami Iransacljon to detraud, 956,

cannot sei/c wile’s propcily foi husband’s debt, 748,

claim of creditor Jiiierior to that of suiviving coparcener, 445,

suit on debt and limitation, 419, 420, 421, 422.

CUSTODY. Sec Makuiaol, Minou.

CUSTOM,

a <*-0111 ct‘ ol law, 64-79,
adoption, custom prohibiting, 212,

.adoption, custom of, by dancing gii Is, 73, 74. 292,
adoption of daughters, 197,
alienation of religious office, custom of, 73,
barliarous customs, 7 In,
basis of custom, 65, 66,
binding nature of, 64,
cannot he created by agioemeni, 78,

( oniinunities governed by customaiy Jaw, 87,
discontinuance of custom, 75,

divorce, abandonment and reman lage, usages i elating to, 72, 73,
('sseiitials and evidence of valid custom, 69-72, 75,
antiquity, 71,
certainty, 71,

must lie continuous and uniJoiin, 70,
must not 1)0 immoial or opposed to jiublic polmy, 72, 73,
miisl be ascci tamed Jjy tlic sense of the community, 72n,
lainily custom, 75-77,
ludicially recognised, when, 71,
local customs, 77,

recoids of, 67, 68,

Medhatithi on, 8, 9, 66-67,
ovci rides hmrili law, 66,
pi oof of, 76-79,

lecognilioii as a souicc of law by early writers. 65, 66, 67,

by modern law, 67,
by legislation, 67n.

CUTCIll MEMONS,

governed by Hindu law of iiiheiilance, 99-101,

Muslim Peisonal law (Shaiiat) Application Act, effect of, 87, 101.

CYPRES, 945,

DAIVA,

form of marriage, 128,
now obsolete, 133.

DAKSHA,

author oi a Siniiti, 33.

DAMDUPAT,

rule of, 18n.

INDEX.

1006

DANCING GIRLS.

adoption bv. 292.
custom of adoption among, 73. 74,
succession to stridliana of, 763

DASIPUTRA,

meaning of, 6t7, See iMEClTiMaifc Son

DATTAHOMAM See ADOPrioiN
DATTAKA or ADOPTED SON See Ad6ption
DATTAKA CHANDRJKA.

age author«;hip and aiithont> of 56

DATTAKA iMlMAMSA.

age, authorship and aulhorit\ 56

DAUGHTER.

adoption of, 292, 295

alienation hv, 778-781

collaterals, of in RoniI)a\ 625,

descendants, of m Boinhav 625

eldest daiigliti*! takes inifiartihh estati* 660

excluded hy custom 657-6)8

gift or l)t‘(|uest to 875 908

illegitimate daughteTs right to maint(‘nanct‘ 825

maiiitenanci* of, 825,

no right to paililion 660

partition, lights on 549-550

preference among daughteis Mu , 658-659

D Bh 705-706

property of maiden 752-755
prostitute daughter's light ol su< cession 659
reverter of estate to ii(*xt lieirs of father. 660
rights of m Smritis 585, 611, 619-620
at first as appointeM daughtei 619
claim based on f onsangiiinity, 619
succession under Mit . 657-659

n Bh 696 705-706

1) Bh in undivided iamilv 177-578

siicces-sio., ,,, -tiidhana

to sulka iMit ) 751-755,
to non-sidka 755-756
to yautaka (Mithila) 758,
under Mayukha. 758-759
under D Bh 760-762

not harreel hy unchastity, 727,

survivorship among daughters, 660 706
takes limited estate* under Mit ^ 1) Bh 660 740-741, 765,
takes absolutely under Mayukha, 660-661, 742, 767
iinchastity of does not discpialify her (Mit ), 627, 727,
unchastity of, excludes under Dayabhaga, 705

DAUGHTER’S SON,

adoption, consent of, unnecessaiy for, 223-225,
eligibility for. 244-248,
not a bar to, 202,

earliest cognate to be rccognist^d as heir, 591-592, 661,
eldest takes impartible estate, 662,
excluded by custom in some parts, 661n,

INDEX.

1007

DAUGHTER’S SON— co/^/mwe^.

nature of estate in tnat^rnal grandfather's property, 662-664,
propinquity, right based on, 605-607,
stridhana succession to, 756, 758, 759, 761, 762.
succession under Dayahhaga, 696, 697, 706,

Mitaksliara 661,

effeit ol Act XVIII of 1937, 718-719,
survivorship 352, 662-664,
takes aftei all admissil)l<« daughters, 661,
takes as full owner, 662,
takes per capita^ 660, 661, 662.

DAUGHTER-IN-LAW. See Maintknanci

rights of widowed, under Act XVIII of 1937 84, 711, 718.

DAYABHAGA,

age and authorship, 55,
authority, 55,
commentaries on, 55,
comparison with Mitak‘'hara. 59
DAYABHAGA SCHOOL,
author I lu‘s of, 54-55,
coparcener’s ])oweis, 462.
distinctive (iriiu iples, 50, 594
fathei’s poweis, 461-462,

(oint family in. 377-379.

managing memliei's poweis, 169.

jiaitition of family |)io[)eity, 536 see Bariition.

rights of puichaseis, 497,

rights ol woiiK 1 at a paitition.

gieat-grandmothei, 548,
mother, 547,

paternal giandmother 517,
widow, 545, 546,
wife, 544,

succession under, sec* Stridiianx, Si c c i ssh>\ I mu h Dayxbhxo^ I.aw

DAYAKRAMASANGRAIIA,

author. Sii Kiishna Taikalankaia. 55

DAYATATTVA.

by Raghunandana, 55

i)ayavibha(;a,

age and autlioiship. 50.
authority in Southern India. 50

DEAFNESS,

whc'ther (*\(diide- liom inheiitance. 726
or a sliaie on paitition. 550

DEATH.

assenting sapinda's death, c*ttect ol, 225.

father'*^ debt, Mm's liabililv to pay, aiises m father'^ lifetime, 418,

partition, death of niinc»i pending suit for, 564.

partition, elTc^ct ol coparcener’s death pending suit for, 573,

DEBTS,

acknowledgment of, by fathei, 421,

guaidian. 308,
manager, 403,
widow, /a3.

1008

INDEX.

DEBTS — continued

agency, liabihly ba^c^d on, '117-J5J.

obligation does not aiise fiinii nune lelalionsliii), 417,
power of coparcener to boirow, 449,
of manager, 448, 450,
of wife, 449,

antecedent debts, meaning of, 426, 428,

fathei’s alienation to pay his, 426, 428 441, 465,
assets, (d)ligation arising from pobsussion of, 441, 861,

aiises e‘(|iially in case of hmr or cxeciitoi dc son toit, 411-444,
Jiabdily of (opaie(*nei taking by sui vi\oi slnp, 441-447,
wlielhei a charge ujion the estate, 443,

<nuis of jiroof <»f dss(‘is, 447,

attathmenl ot joint family jnopenty foi fatln I's debts, 435 136,
of undivided sjiari' foi copaicenei's delits, 444-145,
avYUvahatiha debts, 408, 412,

bailed debts, alienation by falhei to jiay his, 428,

widow to })av hiisbancrs de*bts, 782,
power of inanagei to levive, 404,

Inisine'ss d( Ills ineiiiied bv managei, lialiditv of family ass(*ts for,
399-401,

Jiabdilv of minoi 101,

pious obligation of sems foi lathers 397-. 198,
eomnu'ie lal debts, liability of sons to pay tath< rs I09,
debt not due and payable, fathers alienation loi, 429,
disehaigi* lor debts manager's authoiity to give, 404,
e'xeculion proceedings bv creditoi foi father's debts, 435, 4 )6,

(‘xl<‘nt of interest t>assing undei sjh. oi moitgage, 424, 425, 4.30,

female heir, i)a>ment of debts of picvious ownei by, 783,

grandsons and gi(*at-grandsons liable* foi debts, 417,

grounds of liability foi delits, 405,

luisband’s eh'bts, alienation by widow to pay hen, 782,

insolvenie y, sec Ijvsolmnci,

inunoial dedils 408-109,

luirden of jiioof of iminoialily, 432
notice of nature of ehdit to execution jiuiehase'i , 43.3,
limitation f^^i suits as against son, 419 121,

inanagi‘1, liability of eojiau (*neis Im debts iiu lined by, 167-169,
pailition, deeiie against lathei alone aftei tiaitilion not binding, 438,
but binds ]1 obtainc'd befuie paitition, 439-441,
jui -jiarlition debt, liability foi, 137,
piovision foi lamdy debts on, 437,
pious obligation, doctiinr of, 423,

of widow to jiay hei husband's di bts 782,
piioiily of, oven widow’s claim leu maintcMiam c 1310,
jiromissory notes, liability of coparceneis foi debts of fathei or manag(*r
under, 451-453,

son’s liability to pay his father’s debts,
ancestral estate etpially liable*, 416,
aiises in father’s life time, 418,
ass(‘ts me Inch* wliole of |oml i)join‘rLy, 417,
eases in which it does not arise, 407,
charge on inlnnitaiice , 437.
liability ceases with father’s, 421,
non-payment, a sin, 405-406,
now confined to assets, 416,
obligation is religious, 407,

Index.

1009

DEBTS — continued.

son’s liability to pay Jus father’s debts,
only one remedy .against son, 419,
party to creditor’s suit, effect of being a, 422,
time barred debts, son not liable to pay, 421,
trade debts, payment of, by widow, 793,
sulka, 410,

suretyship debts, son’s liability to pay his father’s, 420.

DECLARATORY SUITS,

by an adopted son to declare the validity of liis adoption, 291,
by a reversioner for a declaration that he is the next reversioner, 814,
to declare invalid an adoption made by widow, 291, 817,
to declare alienation or surrender by widow invalid, 816, 817, 818,
to recover possession on the death of female owner, 291,
to restrain waste by widow in possession, 815,
by widow to set aside an adoption by her, 288.

DEGREE,

adoption, as to validity of, binds parties. 288,

• against benaniidar binds true owner, 958,

father for his pioper debts, binds sons, 422,
manage/ binds coparceners, 386, 450,
manager oi shebait binds institution, 938,
minor, when binding, 313-316,
widow, when binds reversmneis, 807-809,
maintenance, foi, effect of, 836, 837.

DEGRADATION FROM CASTE,

effect of, on rights of the oiitcaste, 79,
on right of guardianship, 302,
no deprivation of maintenance, 821,
now relieved by statute, 79, 80, 728,
of son enables fathei to adopt, 204,

DELIVERY,

sale compJete without delivery oi jmssession, 520,
whether essential to complete gift, 865-866.

DEVALA,

a Smriti writer, 33,

DEVANANDA BHATTA,

author of Smiiti Cliandrika, 49.

DHARMA AND DHARM AS ASTRAS. See Smritis.

DHARMASINDHU,

a digest of ceremonial law, 57,

author, Kasmatha, 57,

views on sapinda relationship, 161, 164-166.

DISQUALIFIED PERSON,

may take under a gift, 867.

See Adoption, Exclusion, Pautiiion.

DIVESTING OF ESTATE,

adoption divests estate of inferior persons, 265-272,
adopted son, how far divested of property vested in him as sole
surviving coparcener, 263-265,
disability, subsequent, does not divest, 730;

disability, subsequent removal of, does not divest estate vested in
another, 730, 731,

unchastity, subsequent, does not divest, 655, 704, 705.

66

LOiO

INDEX.

DIVORCE,

recognised by Ideal usage, 186, 187,
whether valid if permitted by custom, 72, 73.

DOMICIL,

act of government, whether affects domicil, 98,
change of personal law on change of domicil, 96-98,
personal law is law of domicil, 95,
presumptions, 96-98.

DRAUPADI,

legend of, 105n

DRAVIDIAN RACES.

fusion with Aryan*^, 6-7,
governed by Hindu law, 92

DUMBNESS,

whether excludes from inheiitance, 725, 726,
from paitition, 550

DWYAMUSHYAYANA,

afterboin son, rights in competition with, 281-282,

inherits in both families, 282,

necessity for contract, 280-281,

onus of proof, 281

original meaning of. 280,

son of both fathers, 280-281,

succession of, 282,

succession to, 282.

ELDEST SON,

adoption of, 243,

claim to a special share on partition, 56b.
now obsolete, 566, 567,

succeeds to impartible estate by actual senioiity. not that of inothei, 855,
unless mother is of inferior class, 855n,
oi by special custom 855

EQUITIES,

on setting aside alienation
by coparcener, 507.
father, 515,
female heir, 818-820,
guardian, 312,
manager. 513, 51 1, 516

ESCHEAT,

only to Crown, 688,

crown may set aside unauthorised alienation, 688, 769,
must establish absence of heirs, 617, 686, 687, 688,
takes estate of Brahmin, 687,
takes subject to valid trusts and charges, 688

ESTOPPEL,

as establishing adoption, 289,

of reversioner who consents to a widow’s alienation, 803, 804.

iNDJliC.

Inn

EXCLUSION FROM INHERITANCE,

after-born son of disclualified heir, rights of, 731, 732,
cannot divest in Dayabhaga, 731,
will divest, if inheritance is unobstructed, 731,
blindness, as a ground of, 725,
congenital lunacy and idiocy alone grounds of,

in the Mitakshara School under Act XII of 1928, 725,
except in respect of religious office or service, 725,
deafness, as a ground of, 725,
deprivation of caste, effect of, 79, 80, 728,
disability applies to females, 729,
disability only personal, 729,

except where heir is adopted son or widow, 204, 729n,
removal of, effect of, 730,
subsequent, does not divest, 731,

disease, incurable, whether excludes from inheritance, 725, 726, 727,
partition, 550,
disqualified heirs, of,

based on physical or mental incapacity, 724,
right to maintenance only, 725,
dumbness, as a ground of, 725, 726,
enumeration of disqualified heirs, 725,
lameness, as a ground of, 727,
leprosy, as a groun<l of, 726,
lets in next heir, 730,
mental infirmity, as a ground of, 726,
murder, as a ground of, 728,

religious order, entrance into, as a ground of, 732, 733,
removal of disqualification, when entitles disqualified heir to divest,
730-732,

unchastity, as a giound of, 727.

EXECUTION,

effect of attacluncnt in, 144-4 16, sec Attai hmlnt,
of decree against father, 435-437,

member of joint family, 444,
representative of joint family, 386, 450,
widow or female heir, 810,

proceedings in, how far can be disputed by sons, 433-435.

EXECUTOR,

powers of, 912,
probate, effect of, 911,

necessity for, 911,
liustee, when and how far an, 910,
vesting in, 910,

widow’s powers as executrix, 769n.

FACTUM VALET,

application of doctiine to adoption, 255,
breach of moral obligation, 254,
iiiegular inariiages, 173.

FAMILY ARRANGEMENT, 496, 883-881.

FATHER. See Adoption, Ai^ienatiok, Debts, Insolvency, Partition.

StTrrKSfiloN-

1012

INDEX.

FEMALE BANDllLiS,

Bombay, in, 623,

come after male bandhus in each class, 626-627, 680,
daughters of descendants, ascendants and collaterals, 624,
Dayabhaga, not recognised in, 696-697,

Madras, in, 624,

rules determining order of succession, 679,
bister in Bombay, 621,

lights under Act 11 of 1929, ‘681-082,

Madras, 623-624,
step-sistei. 625-626. 629,

lights under Act II of 1929, 669-670

FEMALE HEIRS,

daughtei, Uavabliaga, 707,

Mitaksliara, 663-664,
texts relating to, 619-620,

early recognition of rights of women liy Smiitis, 583, 611-613, 620
lenidle bandhus in Madras and Bombay, 623-625,

See Fimali B\ndhls,

grandmother, 668, 696, 709,
great-grandmolhei, 620, 670, 685, 696, 710,

Mitaksliara on, 613,
mother, Dayabhaga 707,

Mayukha, 664,

Mitaksliaia, 663-664,

lecognition of certain heirs in all pioviiiccs, 614, 696-697,
leligious office, right to, 927-928,
sister, 621, 622, 623, 668-669, 681-682,

statutory hens,

Hindu Law of Inheritance (Amendment) \ct, 614, 696-697,
Hindu Woimm’s Rights to Proi)erty Act 81, 611, 696,714
step-motliei, 626, 665, 707,
step-sister, 6^5-626, 669-670,
unchastity of, see Unchasiiiy,

widow,

heir to husband only, 617,

except in Bombay, 618,

lieiitabh' right nebulous as long as lemairiage was allowed, 613,

Mitakshara’s conclusion on, 615-616,

recognised as heir by Smritis, 614-615,

rights in Bombay, 618-619,

lights under Act XVIII of 1937, 616, 696,714,

wives of golrajas not heirs except in Bombay, 616-617, 626.

FRAUD,

adoption, invalid if consent is obtained by fiaud, 226,
marriage by, 173,

reopening of partition on account of, 576.

GAINS OF LEARNING,

Act XXX of 1930, its scope, 82, 83, 370,
early texts, 366-368.

inhex.

1013

GANDHARVA, see Marriage,

•

an approved marriage, 137-138,
form of marriage, 131,
misconception as to, 134-136,
not concubinage, 136,
not obsolete, 133, 136,
svayamvara is gandharva, 136,
widow marriage is gandharva, 137.

GAUTAMA,

author of a Dharmasutra, 22,
his age, 22,

modes of acquisition on stridhana, 735, 754.

GIFT,

acceptance necessary, 865,

may be express or implied, 866,
affection, gifts through, valid, 483,

ancestral property may be gifted by father before adoption, 275, 864,

annuity to a man and his heirs, gift of, 870,

condition precedent, gift subject to, 872

condition subsequent, gift subject to, 872,

condition void, if gift is complete, 872,

contingent gifts, 872,

coparcenary interest, gift of, Mit , 494, 864, Day., 462,
defeasance, subject to, 873, 895,
definition of, 864,

delivery of possession, whether necessary, 865, 866,
dharma, gift to, 919-920,
donatio mortis causa, 867,

estate unknown to Hindu law, gift invalid if it creates, 871,
females, gift to, 873,

gift of actionable claims and mortgage debts, 865,

gift of future property, 865,

gift over. 897,

gift to a class, 870,

gift to an idol, 864, 916,

how effected, 865,

immoral conditions in, 871-872,

imperfect, 868,

income, gift of, 904,

invalid prior gift, 873,

invalid ultimate gift, 873,

joint tenancy, no presumption of, 873,

limited heir, gift by, 779, 781,

lunatic, gift to, valid, 867,

minor, gift to, valid, 867,

perpetuity, rule against, 869, 890, 891, 892, 916,

persona designata, 285, 286, 905,

property at the absolute disposal of owner may be gifted, 863,
religious and charitable purposes, for,
by father or manager, 482, 864,
widow, 779-782, 864,
religious office, gift of, 943,
repugnancy, gifts void for, 871
revocability of, 873,

1014

INDEX.

GIFT — continued

separate property, gift of, 863, 864,

son, nature of estate taken by, in gift by father, 356-359,

tenancy-m-common, presumption of, 873, 903,

trust for charitable and religious purposes, 875,

not subject to rule against perpetuities, 892, 916,
foi illegal purpose, 875,
how cieated, 874,

unborn peisons, gifts to, 868, 887-889

limitations subject to which it can be made, 868 889-890,
uncertainty, gifts void foi, 920-921,
vesting of, 872,

See Wills.

GOTRA,

change of gotia on adoption, 256.
change of gotra on marriage, 133,
gotra for purposes of widow remarriage, 657,
meaning of, 582,

prohibition of giil of same gotra for marriage, 170,
sagotra boy can be adopted after his upanayanam in Madras under
custom, 249,

who are the foundeis of gotras, 170n,

woman married in unapproved form did not formerly pass into
husband’s gotra, 132,
but not now, 133.

GOTRAJA SAPINDAS,

sister is a gotiajasapinda in Bombay, 622,
succession of, under Mitakshara, 667-678. 670-672,
who are, 628,

women married into the family aie, 626, 627,
inherit as collateials m Bombay. 618

GOVERNMENT,

consent of, or notice to, not necessary in case of adoption, 207.

See Escheat

GOVINDARAJA,

a commentator on the Code of Mann, 43,
age of, 44. *

GOWNA, 960,

GRANDFATHER AND GREAT-GRANDFATHER,

may be sued for partition, under Mitakshara law, 531,
not under Bengal law, 531,

See SrccESSiON

GRANDMOTHER AND GREAT-GRANDMOTHER. See Partition, Sue-
CESSION, Woman’s Estate.

GRANDNEPHEW. See Succession.

GRANDSONS AND GREAT-GRANDSONS,

included under term issue, 341-343, 644,
their right to a partition, 531,
their propinquity, 672.

INDEX

1015

GUARDIAN,

acknowledgment by, 308,
adopted son, guardianship of, 302,
age of majority, 297,

when guardian appointed by court, 298,
alienation by, 307, 309,
appointment of, by will. 300,
caste, loss of, 302, ••

change of religion by parent, 303, 304,
by ward, 304,
compromise by, 313,
contract by, 306, 310,

custody of minor, guardian^ right to, 302. 304,
de facto guardian, powers of, 309, 310,

father can appoint guardian of person of minoi by will, 300, 301,
father cannot delegate right of guardianship, 302,
guardian cannot bind min(»r personally, 310,
liability to minor, 316,

power to revive oi pay time barred debts, 308,
when guaidian’s acts bind the ward, 307,
guardian of property of infant coparcener. 298, 299.
guardianship in marriage, 146-148,
husband, when entitled to custody of minor wife. 301,
indemnity, guardian’s right to, 311.

inherent jurisdiction of Court to appoint guardian of minor’s copareen.-
ary property, 299,

illegitimate child, mother is guardian of, 305,
mother, effect of remarriage of. 301,
natural guardians, 299, 300,
order of guardianship. 299,-
parent’s right of guardianship, 299, 300,
power of court to appoint or remove, 299.
principles on which it acts, 299,
sovereign is, as patent pafnae, 299,
step-mother, 300n.

See Minor.

GUDHAJA,

one of the subsidiary vson^s, 116.

HALAIMEMONS, 101.

HALF-BLOOD,

brother of full blood preferred to brother of, 665,
succession in Mayukha, 666,
nephews of full blood preferred nephews of, 666,
succession in Mayukha, 666,

preference of full blood to half-blood, 599, 610, 665, 666, 702, 857,
applicable only to competition inter se, 610, 702,
in case of succession to impartible estate, 856, 857,
re-union and, 68vS,

sister, whether includes half-sister under Act II of 1929, 669, 670.

HALF-BROTHER,

under the Dayabhaga, 707,
under the Mayukha, <366, 856, 857,
under the Mitakshara, 665,

loic

INDEX.

HALF-SISTER,

as an heir in Bombay and Madras, 625,
heir under Act II of 1929, 669-670.

HALHED’S,

Gentoo Code, 58.

IIARADATTA,

commentator on Apastamha Smriti. 23,
on Gautama Smnti, 22

HARITA,

a Smriti writer, 25.

HEIR See Dkrts, Inhkritanc i*. Maintenance, Succf:ssiON.
HERMIT,

excluded from inheritance, 732, 733,
succession to, 688-689

HINDU,

an elastic term, 5,

lapses from orthodoxy, effect of, 88, 90,

membership of caste not necessary for bcinp; a Hindu, 91.

HINDU LAW,

agrees substantially with usage, 4,
applicable to all Hindus, 87 92,

but not to (ommunities governed bv customary usages, 87,
application in the present day 17
branch of dharma, 7,
conversion, effect of, 98, 102,
early judicial administration, 13,
eighteen titles of law 15, 28,
four sources of Vyavahara law 15,
interpretatioji of, 33-37, see Mimamsa
limits of leligious influence. 16.
nature and origin of, 1, 15,

persons to whom Hindu law applies, 87, 89. 93, 91,
persons to whom it \s not applicable, 87,
renunciation of Hindu religion, effei t of, 90
sources of, see SoMU i s oi Hindi' i \\v,
statutes modifying, 79,

Acts relating to Inheritance 83,

Caste Disabilities Removal Act, 1850,79,

Hindu Disposition of Property Act, 82,

Hindu Gains of Learning Act 82, 83,

Hindu Widows’ Remarriage Act, 80
Hindu Women’s Rights to Property Act, 84

.HINDU WOMEN’S RIGHTS TO PROPERTY ACT, 1937,

abrogates survivorship m Mit coparcenary, 338, 719-720,
applies to Mitakshara and Dayabhaga, 715-717,

confers better rights on specified women, namely, widow, widow of
predeceased son and widow of a predeceased son of a predecease
son, 84, 714,

difficulties of construction, 716-717.

CJ

INDEX.

1017

HlMriJ OMEN'S RIGIITS.TO PROPERTY ACT, \9Z1— continued.

effects revolutionary changes, 85,

in the law of adoption, 84, 239, 268-272, 723,
in the law of alienation, 84,

in the law of coparcenary, 84, 340, 348, 378, 616, 719-721,
in the law of inheritance, 84, 595n, 614, 616, *627, 643, 651, 652-65C
655, 657, 703, 704, 717-718, 727,
in the law of partition, 84, 542-543, 546, 719,
interest of widow in the coparcenary, when ascertained, 721-722,
maintenance rights of named heirs extinguished, 722-723,
no retrospective operation, 85, 714,
recent amendment of, 85, 714.
recent amendment ultra vires, 85,

results on adoption by widow under Act, 239, 272, 723,

reversionary succession, 354, 718-719,

succession to impartible estates etc unaffected, 717,

unchaste widow succeeds, 722, 727,

validity of the Act, 85,

widows mentioned in the Act take only limited estate, 718.

HIRANYAKESIN,

of the sutra period, 25.

HOROSCOPE,

as evidence of age, 298.

HUSBAND,

adoption without wife’s consent, 208.
agreements enabling a wife to avoid marriage, 188,
conveision of husband, eflett* on marriage, 102,
wife’s right to maintenance on, 827,
custody and guardianship of minor wife, 188. 301,
gift of immovable property by husband to wife, 751, 752,
maintenance of wife, 825-827,
marital duties, 188,

restitution of conjugal lights. 188. 190,
stridhana, power over wife’s, 718,
succession to stridhana,

under Mitakshara, 757,
under Mayukha, 758, 759,
under Dayabhaga, 761, 762.

IDIOT,

marriage, validity of, 150,
whether excluded from inheiitance. 725, 727,
paitition, 550.

IDOL,

a juridical person, 915, 923. 926,
bequest to, 917,
dequest to non-existent, 917,
suits by or against, 927, 938

ILLATOM,

affiliation by diatom adoption in Madras and .Pondicherry, 295,
rights created by it, 296,

illatom son-in-law does not lose his rightf in the natural family, 263n,

1018

INDEX.

ILLEGITIMATE SON,

adulterous intercourse, by, 647,
among Siidra*?, illegitimate son inherits, 646,
collaterally, cannot inherit, 690,
dasiputra, meaning of, 617,
guardianship of, 30S,

illegitimate daughtei’s right of succession, 691,

illegitimate son not a copaicener with his putative father 537 619,

incestuous intercourse, by, 647,

illegitimate brothers can inherit to each othei. 651. 690
mdinlenance, if son of dvi|a 536. 646
light IS only personal, 536 646
motliei must he a Hindu. 648,

lelationship need not he such as the pul alive fathei could have
maiiied hei. 647,

offspring, by what law governed, 94, 95
paitition, 536*539, 648-651,

entitled to shaie in separate properly on his father’s death. 538,
father may give shaie on, 538 648.

legitimate son of illegitimate son takes a share, 538, 651,
share on partition extent of 539, 648, 649-651,
share affected by Act XVIII of 1937, 650,
succeeds, by survivorship, 538, 649,

but only if father dies a separated immiber. 538.
when entitled lo whole 648. 649, 650,
prostitution does not sever tie of kinship, 690
reversionary heir, whether a, 650,
succession of illegitimate son of Sudra,

Day., 703,

Mit , 649

succession to, 691, 692
IMMORALITY See Customary Law,

burden of proof of immorality of father’s debts, 432,
gifts subject to immoral conditions validitv of, 871*872,
religious office, whethei forfeited by 910

IJ^MOVABLE PRC^PERTY,

dedication of, how effected, 922,
gift of, how effected, 865,
gift of, ancestral, b;^ father, 483,
by manager, ih ,

self acquired, by father, 459-460,
gift or bequest of, by husband to wife, 751, 752.
guardian’s contract to purchase, 306,
limited owner’s alienation of, 778,

recovery of ancestral property lost to the family. 372, 373, 378, 379,
transfer of, governed by T P Act, 521,
trust of, how created, 874.

See Alifnation, Woman’s Estmi

IMPARTIBLE ESTATES,

accretions to, 852-854,

accumulations of income of, separate property of holder, 852,
agreement, cannot be created by, 844,
alienation, right of, 850-851,
custom, by, 75-77,

evidence of inco^^poration of income, 853-854,
incidents of, 846-847,

INDEX.

1019

[MPARITABLE ESTATES -continued.

income from, separate* properly of holder, 364, 852,
instances of, 845,

Madras Impartible Estates Act, 851,
maintenance of junior members, 849, 860-862,

under Madras Impartible Estates Act, 1904, 862,
may be joint family property, 844, 847, 850,
effect of renunciation by one sharei. 859,
meaning of, 523, 844, ♦

onus as to impartible naluie of propeily, 846,
lesumption and legrant of, 846, 847.
separation, proof ol, 859, 860,
succession to, 854,
eldest son, 855,
illegitimate son, 856,
nearness of blood, 856,
one line to another, 857,
reversionary, 857,
senior line, 855, 856,
women, 858,
suivivorship, 364, 849.

IMPROVEMENTS,

alienee’s right to compensation foi value of, 518, 519, 820,
right of reimbursement for improvements made by a coparcener, 528,
529.

INFANT,

in womb, may be the object of gift, 861,

may object to alienation, 509, 570,
rights of, after partition, 539.

See Minor.

INHERITANCE,

abeyance, never m, 597, 702, 730-731,

Acts relating to, 83-85,
adopted son’s rights of, 257-258,
adopted son can renounce rights of, 276-277,
afterborn heir cannot divest, 597, '’30-732, ,
agnates succeed before cognates, 593, 627, 628,
agnates succeed along with cognates under D. Bh., 708
applies only to separate property under Mil., 595, 596,
arises also on civil death, 732-733,

Bombay law, see Succession,
cognates, see Bandhus,

Dayabhaga law, see Succession Under Dayabhaca Lav,.

descent always traced back to last male holder, 596, 702-703,

each male heir becomes head of new stock, 596,

estate of, by what terms confened, 907-908,

estate repugnant, invalid, 893-894,

exclusion from, see Exclusion from lNHERiT\Nn:,

females, see Female Bandhus; Female Heirs.

JUS representationis, 596,

Mitakshara law, see Succession,

parvanasi addha basis of, under Dayabhaga, 695. 697,

per stirpes and per capita, 596-597, 703,

propinquity, criterion of heirship m the Smritis, 598-599,

under Mitakshara, 599,600, See Suc-
cession under Mitakshara
Lvv, 7.

INDEX.

1020

INHERITANCE — continued
systems of, 594,
taken by person who is next of kin at death, 597, 598,
on his own merits, and not through another, ib ,
three divisions of heirs under Mitakshara, 627, 628
See Succession

INSANE PERSON,

congenitally insane person excluded from inheritance by Act XII of
1928, 83, 725,
marriage, validity of, 151,
whether excluded from inheritance, 725, 726,
partition, 550.

INSOLVENCY,

of coparcener vests his interest in the Official Assignee, 457,
of father, his undivided inteiest vests in Official Assignee, 453,
but not that of his sons, 453,

his power to sell for antecedent debts vests in Official Assignee,
453, 454,

limitation on such power, 454,
separate property, vests in the official Assignee, 453,
of manager, his undivided interest vests in Official Assignee, 455,
power to sell for family purposes, whether vests, 455-457.

INTEREST,

rate of, m case of borrowing by manager, 487, ^88.
rate of, in case of borrowing by widow, 789
Vasishtha rate of interest 21

INTERPRETATION,

rules of, 37,

their special and peculiar nature, 38

ISSUE,

includes sons, grandsons and great-grandsons, 341 n, 343,
meaning of, 202, 341n,
succession of. 643-645 695, 703

JAGANNATHA’S DIGEST,

< value of, 5^i^

JAGHIR,

an instance of imp^^rtible estate, 844

JAIMINI,

author of Purva Mimamsa, 35-36,

his rule as’ to assignment of reason, 39, 693n,

his rules of interpietation, 37-40,

Mimamsa rules now of doubtful utility, 41-42.

•JAINS,

adoption among Jains regulated by Hindu law, 197,
age of adopted boy, 251,
ceremonies unnecessary, 252, 253,

consent or authority unnecessary except in Madras, 209-210,
daughter’s son, sister's son, or mother’s sister’s son may be
adopted, 247, 248,

married man may be adopted, 251,
orphan may be adopted, 242n,
secular character of, 197, 198, 210, 239,
terminaUon of widow’s powder to adopt, 239,

INDEX.

1021

JAINS — continued,

governed by Hindu. law, 5, 88, 197,

governed by the Aliyasantana law now governed by the Mit. law by the
Jama Succeb&ion Act in Madra*?, 89,
unmarried daughter succeeds to stridhana m preference to married
daughter, 756n,

widow may take absolute estate by custom m* husband’s property,
ancestral or self-acquired, 779n,

absolute power over movables only m Bombay, 779n,
partition, right to demand, 546n,

succeeds to husband’s estate, thougli undivided, 615n,
takes only a limited estate undei Act XVJII of 1937, 718, 779.

JATS,

adoption of daughter’s son, sister’s son, and mothei’s sister’s son common
among, 247,

generally adhere to Hindu law, 93,

governed by customary law m the luattei of adoption, 93n.

JIMUfAVAHANA,

author of Dayabhaga, 54.
commentaries on his work, 55.

Sec DaYAIUIAGA, D\\ABH\GA bCHOOL, bUCCESSION U^D£R
Dayabhaga

JOINT FAMILY,

coparcenary under Mitakshara, a less extensive body than members of
joint family, 338, 341,
cannot be created by agreement, 352,
constitution and its limits, 341, 345,
distance fiom common ancestor not the test, 343-346,
right by birth and survivorship, 339-340,
rights ascertained on partition, 340,
survivorship affected by Act XV 111 of 1937, 340,
women not coparceners, 348,

after Act XVlll of 1937, ib , 719-721,

Dayabhaga coparceiiaiy, 377.

comparison with the Mitakshaia system, 378,
effect of Act XVIII of 1937, 378,
father’s power of disposal, 377, 461,
no right by birth or survivorship, 377,
sons cannot claim partition, 377, 5^^t,
joint property, not a prerequisite of, 337,
liability of members on karta’s promissory Holes. 451-452,
may be constituted by a single male membei lilong with widows of
deceased coparceners, 361,
mode of enjoyment, 379, 389, 391,
obstiucted and unobstructed heritage, 346, 347,
position of manager of, 380, 382.
presumption in favour of union, 337, 373,
pioperty of, see Joint Family Property.

passes by survivorship, and not by succession, 339,

but widow obtains woman’s estate in husband’s interest undor
Act XVIII of 1937, 340. 348, 718, 722,
lights of members of, in joint family business, see Joint Family
Business,

right of ordinary member, 383,
to require account, 382, 384,

1022

tNDfeX.

JOINT FAMILY — continued.

son's right arises by birth under Mitakshara, 339, 348,
jn father’s self-acquired property, 348-349,
equal right m grandfather’s property, 350-352,
are ascertained on partition, 340,
son’s right under Dayabhaga law, 59, 377, 461, 536,
suit,

by or against manager, binds family, 382, 386, 450,
by one cosharer, how far valid, *387,
inter se, 388,

suits against trespassers, 389,

See Alienation, Ancestral Properiy, Joint Family Business, Joint
F\mily Property, SELh-ACQuisiTioN

JOINT FAMILY BUSINESS,

assets, no distinction between Hade assets and joint family pioperties,

400-401,

business of adult members, 394.

creditors of, liability of coparceners to, 401,

creditor not bound to inquire as to the necessities of the loan, 400,
death of a coparcener does not dissolve business, 392,
distinguished from partnership, 391,

IS descendible and heritable, 392,
manager, powers of,

authority to borrow, 400,

carry on ancestral business, 394,
extend existing business, 397,
start new business, 394-396,

wider poweis of manager of trading family, 395-396, 399, 400.
minoi members’ liability for debts contracted foi, 401,
personal liability of member, when arises, 393,
rights of members governed by Hindu law, 392,
rights of members of family in such business, 398, 399, 400,
strangers, partnership with, 398,

governed by the Partnership Act, 398

JOINT FAMll.Y Pl?t)PKKTY Sw Anckviuai, PROi>tKT\.

ancestral propel ly, what i^, 353-355,
accretions to, 355,
devolution by survivorship, 339,
lost and recovered, 372-373, 379,
alienation by father, manager, or coparcenei, see Alienation,
management of propeity, 380, 382,

manager repie'-rnts iii all traii'-cu tiori'^ i elating joint family property,
385 387,
property,

gifted or bequeathed to son, 356-359,
inherited from maternal grandfather, 353-354,
jointly acquired, 359-361,
obtained by government giant, 371-372,
property obtained on partition, 355-356,
thrown into common stock, 361-362,
what amounts to blending, 363,
rights of coparceners inter .sc, 387-389,

rights of purchasers of coparcenary property or interest, 497, 498, 100,
502, 505, see Plrcha&lr,

INDfiX.

1023

JOINT FAMILY mOPERTY— continued.

separate property, whift is, 364-365,

gains of science, texts as to, 366, 367,

Hindu Gains of Learning Act, 370,
setting aside alienations, 509-511,
equities on, 513, 515, 516,
limitation for, 508-509,

right of legitimate and adopted sons to object, 509-513,
void or voidable, alienation of joint family pioperty without necessity,
516-518.

JOINT TENANCY,

daughter’s sons, when succeed as joint tenants, 662, 663, 664,
unknown to Hindu law, 361, 873, 903, 904.

JUDICIAL DECISIONS,

whether a source of Hindu law, 19

JUSTICE, EQUITY AND GOOD CONSCIENCE,
as a source of Hindu law, 85-87.

KANINA,

one of the subsidiary sons, 115-116.

KARTA. See Manager.

KASYAPA,

of the Sutra period, 25.

KATYAYANA,

a Smuti \Miter. 32,
age of, 32,

gains of learning, according to, 366-368,
stndhana, accoiding to, 737-739, 746, 747, 749, 750,
text of, on the limited estate of a widow. 765n.

KADTILYA,

Ills age, 10*11. Sec Ahiiiasasika

KHOJAHS,

customs of, 87, 99, 100,

governed by Hindu law, how far, 99-101.

now subject to Muslim Personal Law (Shariat)* Application Act, 101.
KRITAKA,

one of the subHdiar’\ sons, 111 112 il5.

now obsolete, 125.

KRITRIMA,

adopted son must consent in lifetime of adopter, 294,
must be an adult, 294,

no restiietion as to choice except as to caste, 294,
lights of inheritance of, 294,
ceremonies not essential, 293,

daughters are adopted in this foim among the Buddhists of Burma
295n,

1024

INDEX.

KRITRIMA — continued,

description of, 293,

husl)and and wife may adojit jointly or sepaiately, 295,
prevails in Mithila and among Nanibudii Brahmins, 293>
obsolete elsewhere, 293,
results of, 294-295,
woman may adopt to herself, 295.

KSHETRAJA,

one of the subsidiary sons. 111, 112, 117-118
now obsolete, 125

KULLUKA,

a commentator on the Code of Manu, 44,

Variiadhaima according to, 7n.

LAMENESS,

whether excludes from inheritaiue, 727,
whether excludes fiom partition, 550-551

LEASES,

by guardian, 307,

mahant, or manager of temple, 931, 935, 936»
managei, 467-473,
widow, 789n.

LEGITIMACY,

presumption as to, 112-113

LEFA,

oi divided ofleiing, 585, 586, 695, 696

LEPER,

capacity to adojit, 204-205,

capacity to be taken in adoption, 244,

whether excluded from inheritance, 726-727

LETTERS OF ADMINISTRATION,

when compulsory, 911-912.

LIFE ESTATE,

alienation, with power of, 898,
gifts subject to a, 872,

successive life interests, validity of, 891, 897,
woman’s estate, whether life estate, 765, 768.

LIMITATION,

acknowledgment of debt See Acknowlldcmi nt.
for adopted son’s suit to declare the validity of his adoption, 291,
for coparcener’s suit to recover possession of propel ty alienated by
manager, 508,

for creditor’s suit against father and son for father’s debt, 419, 420,
for reversioner’s suit to declare his reversionary right, 814,
for reversioner’s suit to declare invalid an adoption by widow, 291, 817,
for reversioner’s suit to declare an alienation or surrender by widow
invalid, 816, 817. 818.

INDEX.

1Q25

LIMITATION — continued,

for reversioner’s suit to recover possession on the death of female
owner, 290,

for reversioner’s suit to recover possession from an alienee from a
widow, 811, 812,

for reversioner’s suit to restrain waste by widow in possession, 290,
for son’s suit to set aside alienation of ancestral property by father, 508,
for widow’s suit to set aside an adoption by her, 288,
manager of a religicms or charitable endowment is a trustee for
purposes of limitation, 933-934, 936. 937,
religious office, for recovery of, 935.

LUNATIC,

congenital lunatic excluded from inheritance and partition by Act XII
of 1928, 83, 725,
gift to lunatic valid, 867,
marriage of, whether valid, 151,
whether excluded from inheritance. 726,
partition, 550.
religious office. 940.

MADANA PARIJATA,

age, authorship and authority. 53.
views of, on propinquity, 600.

MADHAVA,

author of Parasara Madhaviya. 50. 51,
on propinquity, 600,
on rights of parents, 664n,

on Vedic text excluding women from inheritance, 611, 612.

MAHARASHTRA SCHOOL. 63,

adoption by widow in, 227-228,
authorities in, 51, 52, 56,

succession under, 660-661, 664, 665, 666, 681-685,
succession under, to stridhana, 758-760.

See Female Bandhus; Female Heirs; Su^ccessioN under Mitakshara
Law, 12.

MAIDEN,

preference of, to married daughters uitder Mitakshara, 65^-659,

Dayabhaga, 705,

presents to maiden returnable if marriage not performed, 145,
succession to property of, 752-753.

MAINTENANCE,

arrears of maintenance, 835,
demand unnecessary, 835,
rate of, discretion of court, 836,
whether stridhana, 745,
attachment of future right to, 843,
avaruddhastrU 647n, 823, 824,
charge, how far a, 837,

decree does not create a, 837, 843,
effect of fraud, 839,

Us pendens, 838,

secs. 39 and 100 Transfer of Property Act, 839-840,

1026

INDEX.

MAINTENANCE — continued,

concubine’s right to maintenance, 823,
may be barren, 824,
right lost, if unchaste, 823,
convert husband bound to maintain Hindu wife, 827,
coparceners and their dependents, maintenance of, 381, 821,
crown taking by escheat is liable for maintenance, 688, 832,
daughter, maintenance of, 825,
daughter-in-law, of,

rights against brother-in-law, 828, 829,
father-in-law, 829,
legatee from father-in-law, 830,
widowed, under Act XVIII of 1937 inherits, 715, 717, 722-723,
debts take precedence over, 840, 841,
disqualified heirs, of, 725, 821,

donee or legatee takes subject to claim for maintenance, 839, 840,
family house, widow’s right to reside in, 841,
heirs, liability of, 832,

husband’s conversion does not affect liability to maintain wife, 327^
obligation to maintain wife, personal, 825-826,
illegitimate daughter not entitled to, 823,
illegitimate son, maintenance of, 822, 823,

difference between Dayabhaga and Mitakshara, 823,
quantum of, 823,
right IS personal, 822,

liability dependent on possession of assets, 688, 829,
independent of possession of assets, 825,
loss of caste does not disentitle, 821,
manager’s liability to maintain coparceners, 381,
minor son, of, 824,
parents, maintenance of, 824.
persons entitled to, 821,
quantum of maintenance 832-835,

reduced or increased on change of circumstances, 835,
where widow has property, 834,
sister, of, 825,
son, 824, 825.
step-brother, 8?5n,
step-mother, 824n,
widow, maintenance of,

effect of Act XVIII of 1937, 722-723, 828,
rate, where widow has property, 834-835,
remarriage affects right of, 832,
residence in family house, right of, 841,

with husband’s relations unnecessary, 830,
right to maintenance against brother-in-law, 829, 830,

father-in-law, 829,
son, 829,

unchastity of widow, whether disentitles her maintenance, 831, 832,
wife, maintenance of, 825-827,

bound to reside with husband, 826,

may live separately for justifiable cause, 826, 827,
with his consent, 827,
right of, to pledge husband’s credit, 827,
unchastity affects right to, 827, 831.

MAKKATTAYAM LAW,

persons governed by, 94,
widow’s succession under, 652n.

INDEX.

1027

MAJORITY,

age of, for adoption* 205,
age of, for marriage, 150,

Indian Majority Act, 296.

MALABAR ADOPTIONS, 975, 976.

MALIK,

meaning of, 907.

MANAGER,

account, liability to, 381-385,

on partition, 381, 527, 528, 529,
necessity to keep accounts, 382,
under Dayabhaga law, 384, 385,
acknowledgment of debt by, 403,
alienation by, see Alienation,
arbitration, power to refer to, 402,
barred debts, power to revive, 404,
business, power to carry on ancestral, 394,

to extend an existing business, 397,
to start a new business, 394-396,
see Joint Family Business,
compromise, power to, 402,
contracts, power to bind family by, 380,
decrees against, bind family, 386, 450,
family purposes, power of manager to borrow for, 448,
no presumption of benefit, 450,
income, power over, 381,
insolvency of,

vests undivided interest ‘in Official Assignee, 455,
power to sell for family purposes, whether vests in Official Assignee,
455-457,

junior member’s right to be a manager, 380,
legal position of, 380, 382, 385,

liability of coparceners for promissory notes executed by, 451-453,

remit debts, power to, 403,

represents the family in all transactions, 385,

trading family, wider powers of manager of, 399, 4(

MANU,

age, 27,

authority and authorship, 25-28,
commentaries on, 43-45,
sapindas, according to, 588-590,
stridhana, according to, 736.

MARRIAGE,

agreement between husband and wife enabling wife to avoid marriage
invalid, 188,

anuloma marriage invalid. 107, 175, 181, 182,
approved and unapproved forms, 132,
arsha, 128, 129,

Aryan marriage, a well established institution, 105-106,
adultery severely punished, 108-109,
strictness of the marriage tie, 108,
asura,

bride price and its nature, 140,

INDEX.

102 ^

marriage — continued

ea^uTA—conid

origin of, 138-139.
payment of marriage expeiibe^. whether constitutes asura marriage,
142,

payment to bride’s relations illegsil, 142,
whether asura marriage valid, 142-143,
betrothal, only a contract. 144-146,

damages for breach, when allowed, 144,
marriage brocage contracts, invalid, 144,
recovery of amount paid for expenses, 145,
brahma, 133,

presumption in its favour, 133-134,
capacity for,
idiocy, 150,
infancy, 150,
insanity, 150-151,

. impotent person, 151-152,
caste, identity of, 107. 175, 182,

between persons belonging to sub-diviMons of same caste, 178,
ceremonies of, 171, 172, 173,
change of gotra on marriage, 133,

Child Marriage Restraint Act, 150,
conjugal rights, restitution of, 188, 189,
customary forms of, 173.
daiva, 128,

expenses of marriage, 142,

daughter’s right to, 190, 527,
provision on partition 526-527,
factum valet, as applied to marriage, 173. 174,
forms of, 126-127,

Medhatithi on forms of marriage. 129.
their distinctive features. 128,
really three kinds, 129, 133,
gandharva, 127, 131.

an approved form, 137. 138,
lawful for all pastes, 136,
misconception of, 134,
not concubinage, 136,
rites necessary, 135.
swayamvara is, k3.6.
widow marriage is, 137,
gotra and pravara, 170,
guardianship -n, 146-148,
delegation of, 149,
fraud or coercion, effect of, 148-149,
interference bv court, 148-149,
intercaste marriages invalid, 178,
marital duties,

residence with husband, 188,
husband’s guardianship, 188, 301,
marriage, a necessary samskara, 143,
marriage brocage contracts. 144. ,
monogamy by statute, 184,
of insane person invalid, 151

opinion of caste on validity of marriage, how far relevant, 183,
paisacha, not rape and seduction, 130-131,
polygamy, 183, 184.c

INDEX.

1029

MARRIAGE — continued,

prajapatya, 128, ,
pratiloma marriage invalid, 183,
presumption as to form of marriage. 133-134,
as to validity of marriage. 174,
prohibited degrees,

Dayabhaga, 168-169.

Mitakshara, 153-168, see Bandhu and Sapinda,
sarvasvadhanam, 125-^26.

special usages may relax strictness of rules, 169-170,
widow, remarriage of, 187,

after Act XVIII of 1937, whether affects rights, 657, 722,
women, second marriage of,
formerly allowed, 185,

probable omission in present text of Manu, 186,
remarriage legalised, 188.
usage permitting, 186, 187.

MARUMAKKATTAYAM LAW.

adoption, 975-976,
attaladakkam, 974,

conversion of member, whether affects rights, 971,

customary law, 967-968,

enactments altering. 968. 982,

ejaman, 969,

gifts, 987,

junior members, rights of, 979. 984-987,
karar, 982-983,

karnavan, acquisitions by, 987,
alienation by, 980-982,
management by, 977,
powers of. 976-9'?8,
removal of. 983.
renunciation by, 983,
representation by, 978-979,
marriage, 974-975.
onus of proof as to alienations, 981.
partition, 969-972,

rules of disqualiffcation in Hindu law do not apply, 984,

stanom, 988,

succession, 972-974,

tarwad, 968, 969,

testamentary power. 973, 974.

MATRUBANDHUS,

order of succession among. 673, 965, 966,
who are, 607, 629, 642.

MAYUKHA,

age and authorship, 52,

paramount authority in Guzerat, Bombay and North Konkan,«52,
views on *pitruhandhu^ and '‘matrubandhu\ 641,
views on separation of a coparcener, 561.

MESNE PROFITS,

coparcener, alienee from, liability for, 517, 518,

right of coparcener to mesne profits on partition, 530,
right of alienee from coparcener to mesne profits, 502,
widow, alienee from, liability for, 518, 786, 787.

1030

INDEX.

MIGRATION. See Domicil.

MIMAMSA,

application to Smriti texts, 36,
its features, 36, 37,

Jaimini’s rule as to assignment of reason, 39, 40, 693n,
rules of interpretation, 37, 38,
utility at the present day, 41.

MINOR,

adopt, capacity of minor to, 205-207,
adopted son, guardianship of, 302,
age of majority, different views of writers as to, 297,
now fixed by Statute for certain purposes, 297,
bequest to minor valid, 867,
change of religion by guardian, 303,
minor, 304,

.compromise and consent decrees, how far binding on minor, 313,
contracts, absolutely void, 305,

equities on setting aside, 312,
for necessaries, 310,
repudiation and ratification of, 306,
when they bind those who deal with him, 306,
court’s power to appoint guardian of minor’s undivided interest, 299,
custody of, vests in guardian, 302, 305,
debts of joint family trade, liability of minor for, 401,
decrees against, when binding, 313-316.
must be properly represented, 312,
period of limitation for setting aside, 315,
father’s power to appoint guardian of minor’s undivided interest, 300,
fraudulent statement by minor as to his age, 312,
guardian, appointment and removal of, 302,
guardianship, order of, 299,
illegitimate children, guardianship of, 305,
maintenance of minor son, 824-825,
minor not bound by adverse acts of guardian, 311,
partition binding on minor if fairly made, 539,
suit f<!)r, whether effects severance, 563,
when may claim, 540,

power of guardian to bind minor, 306, 307, 310,
right of guardian to cyfjtody of minor, 302,
will by minor invalid, 881

MIRASIDARS,

privileges of, 319,

represent village community in Madras, ih.

MITAKSHARA,

age and authorship, 46, 47,
authoritative also in Northern India, 46n,
commentaries on, 47,
comparison with Dayabhaga, 59,
extent of its authority, 47,

stridhana according to, 737, 739-740, 744-745, see Stridhana,
sub-divisions of the Mitakshara School, 60,
succession under, see Succession, Stridhana.

INDEX.

1031

MITHILA,

authorities in, 53, »

districts constituting, 53n.

MITRA MISRA,

author of the Viramitrodaya and the Viramitrodayatika, 48.
MOLESALEM GIRASIAS,
their customs, 100,

now subject to Muslifti Personal law (Shariat) Application Act, 101,

MOTHER,

adopted son succeeds to her property, 257,
adopted son inherits in her family, i6.,
adoption, right of mother to give her son in, 239-240,
adoption, right of mother as heir to adopted son, 250,
case of plurality of wives, 259-260,
estate of, divested, 266-267, 272,

rights of mother as guardian of legitimate child, 300,
lost by conversion, 303-304,

by second marriage, 301-302,
rights of mother as guardian of illegitimate child, 305.
see Partition, Succession, Wom\n^s Estate.

MOVABLES,

ancestral movables, gift by father of, 463, 464, 465,
partition of, 523n, 531,

widow’s absolute power over movables in Mithila, 778-779,
under Mayukha, 778,

widow’s power over, after Act XVIII of 1937, 718,

iNAMBUDRI BRAHMINS,

adoption by widow without consent of husband or kinsmen’s assent
valid, 209,

of married man, 250n,

dwyamushyayana adoption usual form, 92, 280,
kritrima adoption among, 92, 293,
application of Hindu law to, 91-92,
doctrine of pious obligation does not apply to, 407n,
eldest son only marries, 92,

follow Makkattayam system and Mitakshara law, 91,
partition, right conferred by Madras Nambudri Act, 91, 92.
sarvasvadhanam marriage among, 125-126.

NANDA PANDITA,

author of Dattaka Mimamsa, 56,

his rule as regards eligibility of the boy to be adopted, 248.

NARAD A,

age and modern tone, 30-31,

founded on Manu, 30,

text of Narada on survivorship, 340.

I^ATRA,

a form of second marriage of widows, 187.

NECESSITY. See Alienation.

NEPHEWS. See Succession.

1032

INDEX.

NIBANDHAS. See Commentaries and Digests.
NILAKANTHA.

author of Mayukha, 52.

NIRNAYASINDHU,

author, Kamalakara, 57,

digest of ceremonial law, 57, 161,

views of, on sapinda relationship, 161, 163, 166.

NISHADA,

one of the subsidiary sons, 114.

NIYOGA,

disapproval of, 123,

exceptional usage, 123,

levirate only a single instance, 117,

nature and origin, 117, 118, 245n,

obsolete, 123,

rules and restrictions, 118

OBSEQUIES.

order of persons competent to perform, 960, 961, 962.

OBSTRUCTED PROPERTY,

heir to, has only a contingent interest, 346-348,
meaning of the term, 347

ONLY SON,

adoption of, 243

ORISSA.

law governing, 95

OUTCASTE,

disability of, relieved by Act XXI of 1850, 728

PAISACHA,

form of marriage, ‘130.
not seduction or rape, 130.

PAITHINASI,

of .the Sutra period, 2d.

PARASARA MADHAVIYA,

commentarv on Parasara Smriti, 50. See Madhava.

PARASAVA,

. one of the subsidiary sons. 111, 112, 114-115.

PARENTS,

entitled to be maintained, 824,
rights of succession of, 664-665, 707.

partition,

absence of coparcener, not a bar to, 540-541,
absent coparcener’s right to, 541,
accounts, mode of taking on, 527-530,

Act XVIII of 1937, effect of, 542-543,

INDEX.

1033 ^

PARTITION — continued.

adopted son’s share, on, 261, 536,

after-born son’s right to, 533,

after-born son of disqualified heir, right of, 553,

agreement against, 554,

agreement, partition by, 558-559,

allowed by the Mitakshara in father’s lifetime, *327, 531,
ancestral movables, right of son to demand partition of, 523n, 531,.
apportionment unneces^ry, 559,
arbitration, reference to, as effecting, 565,
births and deaths pending suit for, 573,
circumstances which evidence a, 556-558,
communication of intention, severance by, 562,
conduct as evidencing, 561,
conversion effects severance, 551,
coparcener’s right to sue for partition, 531,
but a son cannot in Bengal, 531,
coparcenary property liable for, 522,
covenant postponing, 554,
daughter’s right on, 190, 527, 549-550,
declaration of intention, partition by, 559-561,
direction in a will postponing partition, 555,
disqualified heirs, right to partition of, 550-553,
disqualification only personal, 551,

effect of removal of, 552,
right in abeyance during supervening, 552,
dwelling-house, partition of, 525,
evidence of, partition, 556-557,
exclusion from partition, 550-553,

effect of entrance into a religious order, 732,
father’s debts, provision for, on partition, 526,
father’s power to effect a, 558,
fraud qf coparcener, effect of, 553, 554,
fraud, reopening of partition on account of 576,
funeral expenses of mother, provision for. 527,
grandmother, rights of, 543, 545, 547,
great-grandmother, rights of, 543, 548,

Hindu Women’s Rights to Property Act, effect of, 542,

hotchpot, 571,

idols, partition of, 524,

illegitimate son,

of the three regenerate castes not ‘Entitled, 536.

otherwise among Sudras, 537-539,
right passes to his legitimate son, 538,
share on partition, 539,

improvements, coparcener’s right to compensation for, 528,.
intention to sever essential, 560,
instrument of partition, registration of, 555,
male issue in Mitakshara can sue for, 531,
not in Bengal, 531,

manager’s liability to account on, 381-385, 527-529,
marriage expenses of coparcener, provision for, 525, 526^
sisters, provision for 527,
mesne profits, right of coparcener to, 530,
metes and bounds, division by, 538, 559,
minor’s death, pending suit for, 564,
may re-open if unfair, 539,
suit for partition, when lies, 540,

1034

INDEX.

PARTITION — continued,

minor — contd

time from which severance takes effect, 563,
minority not a bar, 539-541,
mother,

partition formerly deferred till death of, 328,
now allowed during her lifetime, 328,
share on partition obsolete in Southern India, 543,
shares elsewhere, 544,

under Dayabhaga, 547, *
motives for partition, 325, 327, 328,
murderer, excluded from, 553,

originally no partition allowed during lifetime of father, 325,
partial partition as to persons, 568,
as to properties, 568,
suit for, whether lies, 570.
parties to a suit for partition, 569, 570,

persons entitled to partition, 531, 532, 533, 537, 541, 542, 544, 546,
547, 548, 550.

Partition Act, 575,
partition may be partial, 572.
partition presumed to be complete. 572.
partition, reopening of, 575,
postponement of partition, 555,

prepartition debts of father, liability for, 437, 438, 526,
presumption as to status of non-dividmg members, 568,
principle of representation, 534-536,
property available for partition, 525-527,
property m its nature indivisible, 523-525,

provision for maintenance of disqualihed heirs, female members and
others at a partition. 525,

purchaser from a coparcener, rights of, see Purchaser,
renunciation, separation by, 565,
re-union, see Re-union,
reopening of, 522, 575,

Tight to a share passes by representation in Mitakshara, 534, 535,
law under Dayabhaga, 536,
separate property indivisible, 522,
severance by arbitration, 565,
conduct, 561,
conversion, 551,

declartition of intention, 559-561,
marriage under Special Marriage Act, 566,
renunciation, 565,
sale, 566,
suit, 561,

share obtained at a partition, nature of, 365,
sister, right of unmarried, 527, 549,
son en ventre sa mere^ 533,

•special shares of members obsolete, 566, 567,

«tep-mother’s right on, 546,
strangers, suit for partition against, 574,
suit for partition by, 573,
suits for partition,

all must be parties, 569,

births and deaths pending suit, 573,

by minor, 563,

by or against strangers, 573, 574,

INDEX.

1035

PARTITION — continued.

must embrace all f)roperty, 570,
widow entitled to share in Benares, 546,

Bengal, 545, 546,

widow not entitled to share in Southern India, 543,
widow entitled to demand partition after Act xviii of 1937, 542, 543, 546, 719
wife cannot demand partition, 544-545,
share on partition, 544,
not recognised in ISfadras, 543,
will prohibiting or postponing partition, 555,
women, rights of, under early law, 541, 543,

obsolete in Southern India, 54.3,
recognised elsewhere, 543.

PARTNERSHIP, 391-394. See Joint Family Business.

PARVANA SRADDHA,

basis of Dayabhaga succession, 695-697,
obligatory on sons only, 606-607,
what is. 585.

PATNIBHAGA, 535n.

PATRA,

a form of second marriage of widows, 187.

PATRIARCHAL FAMILY,

definition and origin of, 320,

difference between patriarchal and joint family, 320,
transition from, to joint family, 320.

PAUNARBHAVA,

one of the subsidiary sons, ll4, ^

possesses the status of an aurasa son after the Hindu Widows Kemar-
riage Act, 114.

PER CAPITA,

daughter’s sons take, 536, 661,

succession per capita is the general rule, 597.

PERPETUITIES,

covenants and conditional grants governed by rule against, 871,
gift of annuity does not contravene, 870,

gifts for charitable and religious purposes not affgcted by rule against,
892, 916,

gift to unborn person is subject to rule against, 890.

PERSONA DESIGNATA,

adopted son whose adoption is invalid may take as, 285, 905.

PER STIRPES,

daughters of same class in Dayabhaga take, 536,
distribution on partition among male issue, 535,
grand-daughters by different mothers take, 756,
grandsons by different sons take, 757,
grandchildren succeeding to stridhana take, 597n,
succession per stirpes the exception, 597.

1036

INDEX.

PIOUS OBLIGATION,

doctrine of, 423,

widow’s duty to pay husband’s debts, 782
PITRUBANDHUS, 607, 637.

POLYANDRY,

legend of Draupadi, 105n,
no evidence of it in Vedic times, 105.

POLYGAMY,

allowed by Hindu law, 183,

not allowed to Hindu convert to Christianity, 101,
under Special Marriage Act. 184

POSSESSION,

adverse possession against members of joint family, 387, 389, 390,.
against reversioner. 811.
against widow, 809,
by widow, 746, 811,

delivery of, if necessary to complete gift 865. 866.

POSTHUMOUS SON,

can contest alienation by father, 509-510

POWER OF APPOINTMENT,
by will. 900-902
PRAJAPATYA,

form of marriage, 128.

PRATILOMA MARRIAGE,

invalid, 178, 179 180, 182, 183.

PRECEPTOR,

succession of, 686-687, 712.

PRESUMPTION,

accretions by owner of impartible estate, in case of, 853,

by wido\ir or other female heir, in case of, 772-776,

* alienation by manager with consent of coparceners, in case of, 488-489^
by widow with consent of reversioners, in case of, 793, 794,.
business o^ a single coparcener, as to 375, 376, 394,
debt by manager, no presumption of benefit, 450,
intestacy, against, 909,

joint family property or self-acquisition, as to. 373-377,
joint family union, in favour of, 337, 373.
legitimacy, in favour of, 112-113,
marriage, as to form of, 133,

as to Its validity, 174,
partition as being complete, 572,
reunion, against, 578,
tenancy-in-common, in favour of, 903,
testator’s capacity, as to, 881.

PROBATE,

when necessary, 911.

INDEX.

1037

PROHIBITED DEGREES,

for marriage, 153-169, 634n.

PROMISSORY NOTE,

by manager, liability of coparceners for, 451-453.

PROPERTY, EARLY LAW OF,

corporate character of, 317,
father’s power over mov/ibles, 333,

powers over self-acquired property, 333,
powers in the Dayabhaga, 334,
forms which it assumes, 317,

village system in the Punjab, 317-319,

its destruction in Bengal, Central and Western India, 317, 319.
Mirasidars in Madras, 319.
individual holdings, evidence in favour of, 321,
joint family, origin of, 320,

.limitation on rights of alienation, 321.

, ownership by birth, theories as to, 331,
pre-emption, right of, 321,
patriarchal family. 320,

Sanskrit writers do not go beyond period when property is held by
family as a unit. 322.

See Alienation, Joint Family, Joint Family Property, Partition,
Self- ACQUISITION,

PROPINQUITY,

criterion of heirship from early times, 598, 599,
determining principle under Mitakshara, 599-610.

See Succession. 7.

PROSTITUTES,

prostitution, how far recognised, 73, 74,
prostitute daughter’s right of succession, 659,
succession to the property of, 38n, 690-692

PUBLIC POLICY,

adoption by dancing girls is opposed to, 78-74, 92-93,
alienation of religious office is opposed to, 942-943,
benami transactions, when opposed to, 955,

bequest or gift subject to immoral conditions opposed to, 871, 898,
marriage of an impotent person opposSfl to, 153,
marriage by sale opposed to, 142

PUNJAB,

adopted son's rights in natural family, 263,
adoption, applicability of Hindu law of, 197,
age, no restriction as to, 251,
custom as regards, 210,
disqualified person, by, 204n,
kritrima adoption unknown, 293,
person, no restriction as to, 247,
secular character of, 197,

ancestral movable property, gift by father of, valid. 463n,

customs, records of, 67,

daughter’s son excluded by custom, 66 In,

partition, son cannot demand, 418n,

son’s liability for father’s debts, 418n,

1038

INDEX.

PUNJAB — continued,

<

widow, power of disposal only for secular objects, 770,
remarriage, right of. 186,
succession, rights of, 615.

PURCHASER,

bona fide enquiry, proof of, is on alienee from father or manager, 484,

on alienee from widow, 790,

coparcener, from, rights of,

acquires only an equity, 498,

auction purchaser, rights of, 497, 498, 499,

equities, takes subject to, 504,

extent of interest taken by purchaser, 505,

improvements, right to compensation for value of, 518, 519,

partition, can only sue for general, 500,

but coparcener can sue for partial, 500,
possession, right to,

Dayabhaga, 497,

Bombay, 502, 503,

Madras, 502,

Sec. 44, T P. Act, effect of, 504,
vendee’s vendee, rights of, 499,

execution sale, rights of purchaser in, for father’s debts, 425, 430,
mesne profits, liability for or right to. see Mesne Profits,
necessity, proof of, is on alienee from father or manager, 484,

widow, 789, 790,

right of purchaser of family house, how far subj’ect to the claim for
residence of female members, 841, 842,
right to specific performance of agreement to sell coparcener’s interest,
505,

whether tenant-m-common, 497, 499, 502. 503.

PUTRIKAPUTRA,

one of the subsidiary sons, 113.

RAGUNANDANA,

author of Dayatattva and Udhvahatattva, 55.

RAKSHASA,

a form of marriage, 129,

did not legalise violence or fraud, 130.

REGISTRATION,

deed of endowment need not be registered, 922,
deed of gift, 855,

partition, 555,
reunion, 579.

of authority to adopt, 213 (n),

REGULATIONS,

Bengal Regulation VII of 1832, 79, 728n,

Bombay Regulation IV of 1827, 18, 67,

Bombay Regulation V of 1827, 18,

Madras Regulation^ V of 1829, 877.

INDEX.

1039

RELIGIOUS AND CHARITABLE ENDOWMENTS,

absolute or partial dedication, 923-925,

account, liability to, of manager or dharmakartha, 932,

alienations for necessity,. 929,

alienor, whether can sue to set aside his own alienation, 936,
auditing of accounts of endowments, 948,
benefit of estate, what is, 930,
ceremonies, necessity for, 922,

charitable trusts in English and Indian law, 913, 914,

charitable endowments, what are, 914, 915, 918,

colourable endowments, 915, 916,

creation of endowments, 922,

creditor’s remedy for unsecured loans, 937, 938,

cypres, 945,

decrees, effect of, 938-939,
dedication,

how effected, 922,
irrevocability, 926,
proof of, 925,

dharma, gift to, validity of, 919-920,

dharmakartha, position and powers of, 928, 929, 931, 932,.
female, whether can he manager, 927-928,
founder, rights of, 944-945,
gifts void for uncertainty, 920-922,
idol, a juridical person, 926-927,
bequest to, 917,

suits by or against, 927, see Idol,
ishta, 913,

j'urisdiction of courts, 946, 947,
leases, validity of permanent, 931,
legislation regarding, 947-948,*
limitation,

alienation by previous manager, for setting aside of, 934,
alienation of temple and its properties, for a suit to set aside, 935,
execution sale, for recovery of property carried away by, 935,
for a suit to set aside his own alienation, 936,
for recovery of office alienated, 935, ^

mahant, for purposes of limitation, is a trustee, 933-934,
office may be prescribed for, 935,
ratification of alienation by successor and, 935,
temple or math governed by same y^riods of, 934-935,
mahant, decree against, 938-939,

devolution of office of, 939-940,

office of mahant may be prescribed 935^

position and powers of, 932-933,

power over income, 933,

removal of, 940,

manager,

decrees against, 938-939,
devolution of office, 940-942,
liability to account, 932,
obligations, 931-932,
position and powers, 928,

Madras Hindu Religious Endowments Act, 947, 948,

management by turns, 941,

maths, history of, 917n,

necessity, what is, 929, 930,

offerings, right to, of manager, 929,

1040

INDEX.

RELIGIOUS AND CHARITABLE ENDOWMENTS—

onus of proof as to dedication, 925,

partial or absolute dedication, 923-925.

perpetuities, rule against, not applicable, 892, 916,

private dedication, whether can be put an end to, 915n,

public and private endowments, 915,

purtta, 913,

religious endowments, what are, 917,
religious office, alienation of, 943,
may be prescribed for, 935,
right of management, alienation of, 942, 943,
shebait, position and powers of, 928, 929, 931, 932,
superstitious uses, gifts for. not forbidden, 914,
trust not necessary. 922,
trusteeship, alienation of, 943

REMARRIAGE,

adoption, power to give a son m, after, 241,
receiving a son in, 207,
adverse possession by widow, after, 811,
alienee’s interest terminates on, 657,
custom, by, 186, 187,
divesting of husband’s estate, 80, 655,

though marriage permitted by custom or statute, 655,
unaffected by Act XVIII of 1937, 657, 722,
effect of, after conversion. 102, 656,
formerly allowed, 185,

future rights of succession in the family of her first husband unaffected,
656,

guardianship, effect of remarriage on. 301,
legalised by statute, 80. 188, 655,
of minor virgin widows. 174,

right of succession of widow nebulous as long as remarriage was
allowed, 613,

right to maintenance lost by remarriage, 722, 832.

RENUNCIATION,

adopted son, by, of rights of inheritance, 276, 277,
coparcener, by, effect of, 496, 497, 565, 566,
effect of renunciation of Hindu religion, 90.

REPRESENTATION,

impartible estate, in succession to, 856,
legitimate son of illegitimate son of, 538, 651,
right of male issue m Dayabhaga, 536,
in Mitakshara, 534,

extends only to three degrees, 341-346, 856,
unobstructed property, representation is the rule m case of, 596.

RESIDENCE,

unmarried daughter’s right of, 842,
widow's right of, 841-842.

RESTITUTION,

of conjugal rights, 188-190.

INDEX.

1041

REUNION,

effect of, 579-581, 685,

evidence of, 578, , ’

how effected, 579,

intention to reunite necessary, 578,

on behalf of minor, 578,

presumption is against, 578,

re-united members, whether coparceners, 579-581,*
succession to re-united coparcener,

Dayabhaga, 712-713,

Mitakshara, 685-686,
who may re-unite,

Dayabhaga, 577,

Mayukha, 577-578,

Mitakshara, 576-577,

Mithila. 578.

REVERSIONERS,

adverse possession against widow, whether adverse against, 811,

whether bars reversioner’s suit, 809,
attestation by reversioners, effect of, 796, 803,
compromise by widow, how far binding on, 805-806,
consent of reversioner to widow’s alienation, 793,
attestation, whether evidence of, 796,
effect of reversioner’s consent for consideration, 805,
presumptive proof of necessity, 793-794,
purchased consent, 796,
quantum of consent, 794, 795,
subsequent consent, 796,
consent of female reversioners, 795,
consent of reversioner to gift by widow, 794.
debts of limited owner, whether binding on, 782-784, 791-793,
declaratory suits by reversioners, 814, 816-818,
decree against widow as representing estate, binding on, 807-808,
personal decrees hot binding on, 808,
decree for or against presumptive reversioner binding on actual
reversioner, 814,
election by, 805,

estoppel of consenting reversioner, 794, 80i. 804.
female reversioner’s right of suit, 813,
nearest reversioner only can sue, 812,

res judicata, decree for or against, presumptive reversioner, 813, 814,
sj)es successionis, reversioner’s right i*i,only a, 797
suit to declare adoption invalid, 290, 291, 817,

to impugn alienation by the last male holder where widow colludes
with alienee, 817,
to restrain waste, 815,

surrender, by widow to nearest reversioner, see Sitrrender.

REVOCATION,

of authority to adopt, 213,

endowment validly created, 915n, 926,
gift, 873,

sapinda’s consent to an adoption, 226.
will, 882.

REWAZIAM. 66. 67.

SAHODHAJA,

one of the subsidiary sons. 117.

67a

1042

INDEX.

SAKULYAS,

early meaning of, 586-588,
who are, under Dayabhaga, 695, 696, 698,
order of succession among, 712.

SAMANODAKAS,

religious benefit negligible, 604n,

succession among, 672, 698, 699, 712,

who are samanodakas. 590, 627, 628, 6?9, 628A.

SAMSKARA KAUSTUBHA,

author, Anantadeva, 53,
part of Smriti Kaustubha, 53

SAMSKARAS.

according to the Sniriti*-, 143 249n, 959, 960.

SANYASI.

excluded from inheritance, 733,
succession to property of 688-689

SANKHA AND LIKHITA,

of the Sutra period 25

SAPINDAS,

computation of degrees of, 160-161, 168,

consent of sapindas for adoption by widow in Southern India. 209,
218-219,

definition of sapinda according to Mitakshara. 156. 590-591,

Dayabhaga, 695-696,
divisions of sapindas, 158,

sagotra sapindas, limits of, 158-159,
bhinnagotra sapindas, 159-160, 591-592,
limits of, 159-161,

five degrees for all bandhus, 161-168
gotraja sapindas- -see Gotraja Sapindas,
meaning of ‘‘^apinda' in the funeral code 154, 584-586,
m succession 586-588

preference of full blood to half blood among. 610-611,
prohibited degrees for marriage, 153-169,

succession of sapindas . according to Davabhaga and Mitakshara, see
Succession,

tables of sapindas, 628A 700A

SAPINDIKARANA,

ceremonv of, 585-586, 587n,
daughter's son, if bound to perform, 605.

SAPRATIBANDHADAYA,

what IS, 346, 347

SAPTAPATI,

an important marriage ceremony, 172.

SARASVATI VILASA,

age and authorship, 57,
aiithoritv m Southern India 57.

INDEX.

in4A

SATATAPA,

a Smriti writer, 33;
text of, on Bandhus, 629.

SAUDAYIKA,

gift from affectionate kindred, 739, 746-749.
not subject to husband’s control, 747.

SAUNAKA,

on adoption, 200-201.

SAVINGS. See Accumulations.

SCHOOLS OF LAW,

authorities in various ‘schools’, 49, 51, 53, 54,

Maharashtra School, 63,
migration and schools of law, 95-97,
origin of the schools, 60, 62, 69,
only two schools, 58-59,

other divisions rest on no scientific basis, 60,
principal differences between the two schools, 59,
reasons for the two schools, 60-62.

SECOND MARRIAGE. See Remakriage,

how far widows’ rights affected by,

before Act XVIII of 1937, 655, 656,
after Act XVllI of 1937, 657.

SECONDARY SONS, 113-122, see Sons.

SELF-ACQUISITION,

acquisitions aided by joint lunus, 373,
double share in Bengal, 379, 523n,
ancestral piopcrty lost and recovered, 372,
basis of sclf-acquisition in Smritis and commentaiies, 365-368,
earliest forms of, 322,

father’s power over self-acquired laud under Mitakshara, 333, 459-460,

under Dayabhaga, 334, 461462,

gains of science, 366-369,

Hindu Gains of Learning Act, 82, 370,
gift or devise of, 864, 883,

gift or devise from father to son, nature of, 356-359,
government grants, 371,
incidents of, 365,

inheritance from collaterals, mother or maternal grandfather, 353, 354,
obstructed heritage, 346, 347,
origin of, 322,

powers over, 323-324, 459, 461, 864, 883,
proof of, see Joint Family Property,
saving from impartible estate, 852,
what is, 365,

whether liable to partition, 522-523.

SEPARATE PROPERTY,
kinds of, 364, 365.

SIKHS,

governed by Hindu law, 88.

68

1044

INDEX.

SISTER,

admitted as such in Bombay, 622,
recognised as heir by Act II of 1929, 668-669,
recognised in Madras, 623, 624,
sister includes half-sister, 669, 670,
texts recognising her right, 621.

SISTER’S SON,

includes half-sister’s son, 669-670,

son adopted after sister’s death not included, 258, 669.

SLAVE, 647n,

SMRITIS,

a source of Hindu law. 19,
age unascertamablc, 21.
applicable to all the cartes, 6n,
assumed to be of equal authority, 34,
ahthority and composition, 2,
authorship, 3, 6n.
based on usage, 8,
basis of Hindu law, 1
character, their, 7,
chronology uncertain, 21
dharwasutras, nature and origin of, 21,
relative antiquity of, 22,
interpretation of, 33.
recognition by rulci'' 4.
sruti and smriti, distinction between, 19,
trustworthy charactii evidenced by the Arlhasastra II,

SMRITI CHANDRTKA.

age, authorship, and authority, 49,

SMRITI SANGRAHA,

order of succession act oi ding to, 58 In

SONS,

adopted son, see Adoption,

adult ^ons, right to maintenance oi, 824-825,

afterborn son and paitition, 532-533,

oi disqvialified coparcener, rights of, 553,
of disqualihed heir, rights of, 731-732,
ancestral properly, son's right in, 348, 350,
aurasa, 112,

conceived before and born after marriage, 113,
desire for, 104, 110,
other sons only substitutes, 110,
birth, right by, 339, 348-352,
classification by Manu, 119.
father’s debts, liability to pay, see Debts,
father’s self-acquired property, inteiest in, 349, 350, 351,
gudhaja, 116,

illegitimate, see Illegitimate Son,

irregular sons confer no spiritual benefit, 122,

kaninay 115,

kinds of, 111,

kshetraja, 117,

liability of sons to maintain parents, 824,

INDEX.

1045

S ONS — continued,

nishada or parasava, 114,
niyoga institution, nature of the, 123,
condemned by dharma sastras, 123,
later restrictions, 118, see Niyoga,
partition, right to demand, 531,
paunai bhava, 114,
putrika putra, 113,
sahodhaja, 117,
secondary sons,

disapproval and discontinuance of, 122-124,
obsolete, 125,

probable necessity for secondary sons, 115 122,
rank according to the Smnti writers, 112.

SOURCES OF HINDU LAW, 9, 19,

Smritis, 19-33; Commentaries, 42-58; Custom, 64-79; Schools of
Law, 58-63; Justice, Equity and Good Conscience,, 85-87;
Statutes, 79-85.

SOVEREIGN. See Escheat, Guardian.

SPES SUCCESSIONIS,

of daughter’s son’s son 598, 662,
of reversioner, 797, 812.

SRI KRISHNA TARKALANKARA,

author of Daya-krama-sangraba, 55

SRUTI,

as a source of law, 19
STEP-CHILDREN. See Hali -blood.

STEP-MOTHER,

adoption, right to give in, 240,
guardianship, right of, 300n,
maintenance of, 824n,
marriage, right to give in, 148,
partition, rights on, 544,
succession to adopted son, 259-260,
step-son, 626, 665.

STRANGER,

his right to compel a partition, 550,
right of succession, 686, 712.

STRIDHANA,

acquisition by adverse possession when stridhana. 746,

acquisitions by mechanical arts, 744, 749,

adhivedanika, 736, 738, 750,

adhyagni, 736, 737,

adhyavahanika, 736, 737,

anvadheyaka, 738, 755,

ay au taka, meaning of, 739,

ayaiitaka, order of succession according to Dayabhaga, 762,
bandhudatta, 738,

Bombay School, stridhana according to, 742,
characteristic feature of, 736,

1046

INDEX.

STRIDHANA — continued,

compromise, property acquired by, 7^t5,
dancing girls, succession to property of, 763-764,
dattam pritikarmafii, 736, 737n,
degraded women, succession to stridhana of, 763,
disposition, powers of, over, 746,

property over which she has absolute control, 746, 747, 749,
subject to husband's control, 749, 750,
restrictions on, merely moral precepts, 751,
earnings are stridhana, 745,
gifts by affectionate kindred, 739,

by husband of immovable property, 751, 752,
by strangers, 745,
husband’s right over stridhana
can take in distress, 748,

if taken without necessity, must repay with interest, 748,
right IS personal, 748,

immovable property given by husband, nature of interest in, '751, 752,
income from husband’s estate is stridhana. 745,
inherited property is not stridhana, 740, 741,
exception in Bombay, 742,
maiden’s property, succession to, 752, 753,
meaning of, 734,

mechanical arts, projieity acquired by, 744, 749,

Mitakshara, stridhana according to the, 739-740,
padavandanika, 737,
pntidatta, 736, 737,

property absolutely given foi maintenance is stridhana, 745,
obtained on partition is not, 743,

recognition of women’s lights to pioperty from early limes, 734-735,
!,audayika, 739, 747, 748, 749, 751,
power over. 746,

savings and purchases with stridhana aie, 744,
succession to maiden’s property, 752-753.
sulka, under Dayabhaga, 755, 762,
under Mitakshara, 754, 755,
stridhana other than sulka,
under Dayabhaga

to ayautaka, 762-763,
to pitrudatta ayautaka, 761, 762,
to yautaka, 760, 761,
under MaVukha

to anvadheya and pntidatta. 758, 759,
to non-technical stridhana, 759,
under Mitakshara, 755, 756, 757, 758,

Mithila, 758,
sulka, 736, 738, 749,
texts relating to, 736-738,
yautaka, 739,

SUCCESSION UNDER DAYABHAGA LAW,

cognates, succession of, 697, 699-700, 706, 708-709, 710, 711, 712,
divisions of heirs, 695,

doctrine of religious efficacy, basis of, 693, 695,
three sorts of offerings, 695,

how applied to females, 696,
diagrams explaining system, 697-698,
how applied to bandhus, 697,
ex pUrte paterna, 699,

INDEX.

1047

SUCCESSION UNDER DAYABHAGA —continued.

doctnne of religious eff^cacfy — contd.

ex parte materna, 700,
enumeration not exhaustive, 700-701,
escheat to Crown, 712,
exclusion from, 703, 725,
female heirs under Dayahhaga, 696,
after Act XVIII of 1937, 696,

chastity of, condition precedent, 704, 705, 707, 727,
order of heirs, 703-712,
principles governing order of, 701-702,

cognates and agnates mixed together, 702,
re-union, succession on, 712-713,
sakulyas, succession among, 695, 712,
samanodakas, of, 698-699, 712,
sapindas enumerated, 695, 700 -a,
females, 696,

order of succession among, 703-712,
principles regulating succession among, 701-702,
strangers, 712,

persons of the same rishi gotra, 712n.

SUCCESSION UNDER MITAKSHARA LAW,

Principles of Mitakshara Succession, 582 (ff).

See Inheritance,

1. cognates originally not heirs, 592,

how their claims arose, 593,
earlier terms for heirs, 584, 585,

dayadas, gotra j as, sagotras, sakulyas, 584, 593,
heirs, order of, according to the Smritis, 583, 584,
heirs to be found in the unit of the coparcenary, 582,
extended to the family or agnates, 582,
inheritance and duty in respect of funeral rites went by affinity,
584,

2. Bandhu, at first connoted relations generally, 588,

confined later to cognates, 591,
daughter’s son, the fifst cognate to be reco^ised
as an heir, 591,

recognition by Yajnavalkya, 592,

Vijnanesvara established their rights of succession,
592,

3. Course of succession different for joint family property and

separate property in the Mitakshara* 594,
same for both in the Dayabhaga, 594,

4. Disqualifications, 627,

See Exclusion from Inheritance.

5. Full blood preferred to half-blood, 610, 611, see Half-blood.

6. Inheritance, law of, based on Yajnavalkya’s text, 594,

applicable only to separate property, 595,
doctrine of representation and its scope, 596,
male heir only stock of descent. 596,
never in abeyance, 597,
succession per capita is the rule, 597,
succession per stirpes, the exception, 597,

7. Propinquity, the basis of the Mitakshara system, 594,

criterion of heirship from early times, 598-600,

1048

INDEX.

SUCCESSION UNDER MITAKSHARA hm— continued

7. Propinquity — contd ‘

led to the preference of agnates over cognates, 604,
no connection with pinda offerings, 607,
parvanasraddha, neither a test nor a measure of propinquity,
606,

relied on by the Viramitradoya, 601-602,

religious principle not the principle of the Mitakshara, 602.
610,

right to inherit not dependent on obsequial duties, 609,
rule of propinquity applied to bandhus, 607-609,

8. Sapinda. its connotation in the funeral code, 584, 585,

in the law of succession, 586-587,
mutuality of sapindaship, 632,

new and deliberate definition by Vijnane&vara, 590, 603. 601,

extension to seven degrees, 589,

relationship, independent of pinda offerings, 607,

who are sapindas, 628,

9 Sakulyas meant remoter agnates, 586-588
10. .Sanianodakas, who are, 604, 627-629. 672

11 Women’s rights of succession,

Baudhayana’s text and its scope, 611,

discussion regarding general exclusion of women, 611-613,
626-627,

female heirs, 614,

on marriage, they become gotraja sapindas of their husbands,

133,

substantial rights of property from early times, 612-613,
Vijnanesvara established their rights, 613,

12 Bombay law,

father succeeds before mother, 664,
female heirs,

daughter takes absolute estate, 660,

'^nieoe takes absolutely, 661, 767,
other female bandhus, 623,
sister, 622, 681,
step-mother, 626, 665,
step-sisCtr, 625,

under Act II of 1929, 669-670,
widows of gotraja sapindas, succession of, 618, 682-685,
joirft inheritance under, 666, 682,

succession of sons of deceased brothers of full blood with
half-brothers, 666,

13. Mitakshara law,

bandhus come after samanodakas, 672,

order of succession, 673-679, 685, 963-966, table at the end,
each class takes in the order specified, 673,
propinquity the criterion for determining preference in
each class, 673, 674,
rules of preference, 678, 679,

nearer in degree excludes the more remote, 674,
nearer line excludes a remoter line, 674, 675,
principle of religious efficacy as determining prefer-
f. ence, 676, 677,

INDEX.

1049

SUCCESSION UNDER MITAKSHARA continued.

bandhus — con$d:

preference of bandhus ex parte paterna to those ex
parte mater na, 678.
see Bandhus,

compact series of heirs, limits of, 668,
divisions of heirs, 627-629,
female bandhus, in Bombay, 623, 679,
in Madras, 624, 625, 679,
succession among, 680, see Female Bandhus,
grandfather’s line, 668-669,
great-grandfather’s line, 670-672,

grandnephews succeed in default of nephews, 667, 668.
Harrington’s rule, 671,

not given effect, 683, 684,

issue includes son, grandson and great-grandson, 644,
all take together, 644,

' greater propinquity of the first three, 672,

representation even in succession to divided prop*erty, 645.
rights of adopted son in competition with aurasa son, 260.
261, 645,

succeed along with widow under the recent Act, 643, 717.
other sapindas, 672, 628A,
parents,

difference as to their priority, 664,
mother before father under Mitakshara, 665,
not excluded by incontinence, 627, 727.

by remarriage, 656,
takes as heir to adopted son. 665,
step-mother not entitled, 626,
except in Bombay, 665,
samanodakas, 628, 628-a, 672,
special successions,
ascetic, 688, 689,

absolute retirement from worldly affairs, the test, 689.
rules not applicable to Sudras, 689,

Brahmin, 686,
fellow-student, 686, 687,
fellow-trader, 686,
hermit, 688,
preceptor, 686,
professed student, 688,
pupil, 686, 687,

succession of illegitimate offspring, 690, 691,
succession to a reunited coparcener®

Dayabhaga, 712, 713,

Mitakshara, 685, 686,

succession to property of person married undei the Specia
Marriage Act, 689,

succession to outcastes, and degraded persons, 690-692.

SUDRAS,

adopted son and afterborn son shaie equally, 261,
except in Bombay, 262,

restrictive rule as to the adopted person does not apply tc
Sudras, 245, 247,

adoption of married man invalid, 249, 250,
except in Bombay, 250,

ascetic, inheritance to, governed by ordinary law, 689,

1050

INDEX.

5UDRAS — continued,

dattahornam not necessary, 252,

gotra and pravara rule docs not apply to, 170,

illegitimate son of,

rights of inheritance and partition, 537*539, 649*651, 690, 703,
see Illfgitimatf Son

marriage hetwccn a (hnja and a Siidra bride invalid in Hindu law, 175,
hut allowed by statute, 179.
only ceremony for, 143, 249n,
rule of non*sapinda marriage applies to Siidras, 158,
sanyasi, whether can heconie. 733,

Sudras regarded as Aryans for the purposes of civil law, 5, 6,
Sukalins, the issue of Vasishtha regarded as pitiudevatas for Sudras, 6.

SULAPANI,

a Bengal writer, 48,
author of Deepakalika. 29, 48.

SUPERSTITIOUS USES,

bequests to charities for superstitious uses not forbidden, 914.

SURETY,

son’s liability for debts of father as, 410-411

SURRENDER,

accelerates succession of next heir, 798
civil death, surrender operates as. 797-798,
co-widows must all surrender, 800n
formal transfer unnecessary, 798,
foundation of the doctrine of, 797.
maintenance, provision for, valicj, 799,
mav be by a single act or senes of acts, 800n,
in favour of female reversioner 800.
motive irrelevant, 801,
must be bona fide, 799, 802,
must be to the nearest reversioner. 800. 801.
prior alienations, effect on, 801 802.
whether can he wrth his consent to the next, 800.

SUitviVORSHIP,

abrogated by Act XVIII of 1937, 340. 719,
arr^ong daughters, 660**

except in Bombay, 660*661,
among Mitakshara coparceners, 339,
among several* widows, 653, 705,

partition between co-widows does not defeat, 653, 654,
Arthasastra on, 339n,
attachment prevents, 436, 444,

daughter’s sons, when they take by survivorship, 662*664,
diatom son and aiirasa or dattaka son are not coparceners with mutual
rights of, 296,

impartible property of joint family passes by, 364, 848*849.
legitimate and illegitimate sons of a Sudra under Mitakshara take by
537, 649,

male issue take together with rights of, 644,
no survivorship among sons succeeding to stridhana, 756n,
property given or bequeathed to two or more persons may be a joint
estate with benefit of survivorship, 903,
property to which it applies in the Mitakshara, 339, 594,
re-united coparceners, whether take <by, 580,

INDEX.

1051

SURVIVORSHIP— corelmuerf.

•

self-acquired property of father, whether son takes by, 352,
succession certificate not necessary for property got by, 91 In,
text of Narada on doctrine of, 340,
unobstructed heritage devolves by, 339.

SVAYAMDATTA,

one of the subsidiary adopted sons. 111, 115,
now obsolete, 125.

TENANCY IN COMMON,

presumption m favour of, 873, 903-904,

sons succeeding to stridhana take as tenants in common, 756n.
when heirs take as tenants in common on succession to males, 597.

TESTAMENTARY POWER. See Wills.

THESAWALEME,

a compilation of Tamil usages, 7.

THOLAPPA,

author of Suddhi Vilochana, 58,

authoritative on ceremonial matters in Tamil districts, 58.

THROWING INTO COMMON STOCK,

by coparcener, 361-364.

TODARAMALLA,

author of Todarananda and Vyavahara Saukhya, 4.

TRADE,

manager’s powers. See Joint Family Businkss,
widow, power to carry on trade inherited by, 793.

TRUST,

for illegal purpose invalid, 875,

religious purposes unnecessary, 922-923,
how created, 874,
resulting trusts, 875, 950.

UNCHASTITY,

condonation by husband of wife’s unchastity loes not exclude her
from inheritance, 654,

of concubine, will deprive her of maintenance, 823,
of daughter in Dayabhaga deprives her from taking the estate, 705^
but does not divest her, 705,

of mother in Dayabhaga will deprive her of right of succession, 707,
of widow, a bar to adopt, 207,

except in Bombay, 207,

will depiive her both in D. Bh. and Mit., of succession, 627, 654#
704, 727,

but does not divest her, 655, 704,
will disentitle her to maintenance, 831,
of widow, effect of Act XVIII of 1937, 655, 704, 722, 727,
of wife, affects right of maintenance, 827,

no ground of exclusion in respect of succession to stridhana, 727,

1052

INDEX.

UNOBSTRUCTED PROPERTY,

heir to, has a vested inteicst, 346-348'
what is, 346-347,

UPANAYANA,

a samskara, 960,
bar to adorption, 249,

except by custom in Madras among sagolra** 219
except in Western India, 250-25 i,
not in kritnma form, 294,
ceremony of investiture, 960,
when performed, 249n, 960

USANAS,

of the Sutra period, 25,

text on avyavaharika debts 408

VACHASPATI MISRA,

author of Vivadachintamani, 53

VAIDYANATHA DIKSHITHA,

author of Smnti Muktapala, 51, 58,
authority on ceremonial matters, 58.

VANIKSULKA,

meaning of, 410n

VARADARAJA,

an authority in Southern India, 51
author of Vyavahara Niinaya, 51
VASLSHTHA,

author of a Dharmasutra. 23,

rate of interest fixed by, 24,

remarriage of virgin widow'^ permitted 1)V, 21,

texts on adoption, 200

VIJNANESVARA,

V

author of the Mitakshara, 46
See Mitakshara.

VILLAGE COMMUNITIES.

forms of, in the Punjab, 318-319.

Southern India, 317, 319,
rights of members to forbid alienations, 321,
enforce pre-emption, 321

VIRAMITRODAYA,

age, authorship and authority. 48-49,

views of Viramitrodaya on propinquity, 601, 602.

VISHNU,

a Smriti writer, 24-25

VISVARUPA,

author of Balakrida, 45,

earliest commentator on Yajnavalkya Smriti, 45,

son’s widow and grandson’s widow share at a partition according ttf, 541
716

INDEX.

J053

VISVESVARABHATTA,

author of Madanaparijata, 53,

Subodhini, 47.

VIVADABHANGARNAVA. See Jacannatha.

VIVADACHANDRA,

age, authorship and authority, 53.

VIVADA CHINTAMANI,

age, authorship and authority, 53.

VIVADARATNAKARA,

age, authorship and authority of, 53.
on secondary sons, 118.

VIVADARNAVASETU,

Halhed’s Gentoo Code, 58.

VYASA,

a Smriti writer, 33,

text of on the inalienability of immovable property, 461, 467.
VYAVAHARA MAYUKHA. Sec Mayukha.

VYAVAHARA NIRNAYA,

author, Varadaraja, 51,
authority in Southern India, 51

VYAVASTHA CHANDRIKA AND VYAVASTHA DARPANA,
compilations by S. C. Sarkar, 58

WAJIB-UL-ARZ,

records of local customs, 67n

WASTE,

by heiress in possession, what amounts to, 815, 816,
may be restrained by suit of reversioner, ^15,
may result in her dispossession, 815,
receiver, appointment of, 815-816.

WESTERN INDIA,

adoption by widow in, 209, 227-228
Maharashtra School in, 63,
order of succession m,

brothers and their sons, 666,
daughter, 660,
parents, 664,
step-mother, 626, 665,
rights of females, 766, 767,
stridhana, succession to, 742, 758-759.

see Succession under Mitakshara Law, 12.

WIDOW, see Woman’s Estate.

acknowledgment by widow of her husband’s debt, 783,

adoption by widow divests estate, 265, 266, r

moiety of her estate after Act XVIII
1937, 272» see Adoption,

1054

INDEX.

WIDOW — continued,

alienation, see Alienation,
co-widows, see Co-widows,
husband’s debts, payment of, by, 782,

immovable property gifted or devised by husband, rights in, 751-752,
inheritance, rights of, in Dayabhaga, 703-705,
inheritance, ‘rights of, in Mitakshara, 615-617, see Unchastity,
inheritance, rights of, in Bombay, 618,
maintenance of, see Maintenance, *
may adopt to herself in kritrima form, 295,
nature ot her estate, 765. 766,
in Bombay, 766, 767.

powers of, as an administratrix or executrix, 769n,
religions office, right to, 927-928,

remarriage divests estate of, 80, 655, see Rimarri\oe,
remarriage of widows legalised by Hindu Widows’ Remarriage Act,
XV of 1856, 80, 655,

residence, light of, in family house 841. 842,
rights in Benares, 617,

Bengal, 617, 696, 703,

Bombay, 618, 619.

Mitakshara, 615-617,

right of succession of widow nebulous as long as remarriage was allowed,
613,

rights recognised from early times, 614-617,

succeeds to separate property of undivided husband. 615, 617,

to his coparcenary interest along with or in default of male
issue under Act XVIII of 1937, both under the Mitak-
shara and the Dayabhaga, 616, 643, 703, 719, 720,
rule in Western India, 618,
surrender, see Sijrrlndir,
trade debts, 793,

waste by limited owner, see Waste,
widows of gotraja sapindas heirs in Bombay, 618,
widows of predeceased son and predeceased grandson, 541, 651,
see Hindu Women’s Rights lo Property Act.

WIDOWER,

adoption by, 202, 258-259.

succession of adopted son to predeceased wife o' he adopter,
258-259

WIFE,

adoption by, see Adoption,

agreement enabling wife to avoid marriage invalid, 188,

gift of immovable property by husband to wife is stridhana, 751, 752,

guardianship of, 188, 301.

maintenance of, 825-827,

not lost by husband’s change of religion 827,
marital duties of, 188,

may adopt to herself in kritrima form, 295,

pregnancy of wife no bar to an adoption by husband, 202,

rights on partition, 543, 544,

wife of disqualified person entitled to maintenance, 821,

not entitled to inherit, 729n,

wife’s right to share on a partition between her husband and his ^ns
unaffected by AeJ; XVIII of 1937, 722

lNt)£X.

mss

WILLS,

early traces, 876, *877,

judicial recognition in Bengal, 877,

Bombay, 878,

Madras, 877,
history of legislation regarding, 879,
accumulations, directions lor, 899,
for charitable purposes, 900,
minor’s benefit, 899,
payment of debts, 899,
appointment, power of, 900, 901,

objects of power may include unborn persons, 901,
power, when amounts to absolute gift, 901,
when invalid, results in intestacy, 902,
attestation, 880n,
bequest,

ancestral property, of, 884,
cesser of bequest, 898, 899,
chanties, to, 891,

not governed by the rule in Tagore case, 891,
nor by the rule against perpetuity, 892,
class, to a, 870, 888, 890,
contingent bequests, 894-896,

rule as to, not applicable to gifts, or settlements inter vivos,

896.

coparcenary interest, of, 883, 884, 885,

dharma, to, 919,

disqualified peisons, to, 867, 895,

executory bequest, 894, 895,

idiot, to an, 895,

implication, l)y, 905,

immoral or impossible condition, subject to, 898,
infant, to an, 895,
lunatic, to a, 895,
murderer, to, 887,

one whose adoption is invalid, to, 905.
religious or charitable puiposes, to, 891,
remainder, by way of, 894,
separate property, oi, 883,
two or more persons, to, 903,
unborn peisons, to, 887-889,

limitations subject to which \t can be made, 889, 890, 891,
codicil, 880n,

conditions restraining dispositions, validity oL 903,
partial restrictions valid, 903,
defeasance, 895, 896,
definition of a will, 880,
disinheritance, 886,
documents resembling, 880n,
election, 884n,

estates repugnant to Hindu law cannot be created, 887, 893, 894, 904,
course of succession cannot be altered, 893,
disposal of income alone invalid, 904,
estate cannot be kept in suspense, 904,
new form of estate not allowed, 894,
executor, see Executor,
gift of income, 904,
gift over, construction of, 897,

INDEX.

1056

WILLS — continued.

ineffectual devise, effect of, 891,
invalid prior bequest, effect of, 891,
life estate with power of alienation, 898,
limited estates, grant of, valid, 894,

perpetuity, rule against, 869, 890, 892, 915 See Perpetuities.
presumption against intestacy. 909,
probate, 911,
revocation of, 882,

rules of construction, 890, 896, 905-907,

inapplicability of English rules, 896, 910,
testamentary capacity,

adoption not a bar to dispose of by will, 885,
fraud, coercion, in making a will, effect of, 882,
onus as to, 881-882,
women, of, 885,

‘estamentary power.

ancestral property, over, 884-.
coparcenary property ovci 885
based on law of gifts 882 883
vesting of legacies, 902.

WOMAN’S ESTATE,

account, female owner not liable 765 7(>{)
accumulations, widow’s interest in,
after estate fell in, 771,
made by herself, 772-776,
made by last holder, 771-772
intention, the test of incorporation, 774, 775,
administratrix, female owner, powers as, 769n,

adverse possession against female heir, whether adverse to reversioner,
809, 811,

adverse possession by limited owner against reversioner. 8JJ,
alienation, powers of. see Alien AT lo^,
for benefit of estate, 788,
for maintenance, etc. of members, 784
for necesl!ity, ' 785-787,
for payment of husband’s debts, 782-783,
for payment of the debts of the last full owner. 783,
over movables, 778-779,
pilgrimages, for,*'781,
power to sell or mortgage, 788.
religious purposes, for, 779-780,

Bombay, rigl/ts of female heirs in, 766-768,
compromise, by limited owner, 805-806.

property acquired by, 745, 777,
decree against limited owner, binds estate, 809.
disposal, powers of, of limited owner, 768-770,
equities on setting aside alienation by limited owner. 818-820,
effect of absence of offer to refund by claimant, 819.
execution of decrees for debts of female owner, effect of, 810,
for debts of last male holder, 810-811,
extent of her estate, 768, 769,

full power of enjoyment, 770,
not a trustee for others, 770,
power over savings, 770,

over property obtained under a gift, devise or comproiJLise,
776, ,777,

INDEX.

10.^7

WOMAN’S ESTATE — continued,

husband’s estate notli^le fcjr personal obligations of widow, 791, 795,
808,

improvements, right of alienee to value for, 819, 820,
mam, enfranchisement of, when absolute property, 7*77,
income, female owner’s power over, 770,
interest on last owner’s debts, liability to pay, 77*1,

Katyayana’s text on, 765n,
limitation, 811-812, 817.* See Limitation,
movables, limited owner’s power over, 778,
after Act XVIII of 1937, 718, 779,
nature of her estate, 765, 766,
in Bombay, 766, 767,
under Act XVIII of 1937, 718, 779,
onus of proof of necessity on alienee fiom widow. 789, 790,
personal obligation of limited owner, liability of estate for, 791*792,
personal suits do not bind estate, 808,
property gifted or devised to limited owner, interest in, 776.
rate of interest, 789,
recitals, value of, 790,

representation of estate by limited owner. 807. 808. 809, 810,
res judicata, 807, 808, 809,

reversioners, rights of, see Consent, Reversioners, Surrender,
reversioner, remedies of, see Reversioners, Declaratory Suits,
savings, 770,

surrender, see Surrender,
trade debts, liability for, 793,
waste by heiress, see Waste,

See Alienation, Consent, Limitation, Reversioners, Surrender

YAJNAVALKYA,

age of, 28-30,

cognates first recognised as heirs by, 592, 593,
commentaries on, 45-49,

text of Yajnavalkya is the foundation of the law of inheritance, 591

YAMA,

a Smriti wiiter, 33.

YAUTAKA,

meaning of, 739, See Stridhana

THE END